On the New York Show Trial

Apparently we are heading to a New York show trial of a infamous Guantanamo Bay resident. Some years earlier, a famous essay by Hannah Arendt to whit, Eichmann in Jerusalem: A Report on the Banality of Evil, which highlighted another show trial. In that former trial, to the discerning observer if not to the general audience, political ethics and the public/personal normative framing were highlighted. The prospects seem low, especially given the pre-trial protestations of an assurance of a guilty verdict by Mr Holder, of any such public debate and discussions about political ethics on the public stage. Earlier I queried an interlocutor in conversation over up-coming civil show trial what was his evaluation of the considerations involved in the detainment, processing, and treatment of illegal combatants.

Who are we talking about here. The subjects we are discussing are illegal combatants according to Geneva definition. They use both methods of combat proscribed by the convention and they do not wear uniforms. Furthermore many if not most of those detained are either foreign nationals, al Qaeda or Iranian commandos, fighting not in their own country or in their countries defence.

  1. One of the considerations is that these prisoners do not have a right of a writ of habeas corpus. This, and myself not being a lawyer had to look this up, is the right of a person to request (or demand) a hearing in a court. This of course, begs the question … what court? Putting a person before a court assumes you know what law will apply to them, for law and legal proceedings define the court to which one will be judged. The US high courts do not judge Catholic ecclesiastical law. What jurisdiction and what laws have these men broken, for it seems logical that it is the courts that set up those particular laws under which they should be tried.
  2. Will these men have a defence council? There seems to be at least one consideration on that matter, which is not being widely discussed, especially by the left … I challenge you to find a left/leaning progressive blog discussing this contents of this post (HT: Doug at Stones Cry Out).

    For instance, in the trial of the 1993 World Trade Center bombers, prosecutors were required to turn over to defense lawyers a large amount of intelligence information. Documents from that discovery production, which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout. Let me say that again, confidential documents from a trial in New York were later found in the hands of al-Qaeda

    Does this matter? If not, why not? If it does, what procedures are now in place to prevent a repeat of this?

  3. These men captured, at the very least, are combatants out of uniform. The importance of this cannot be overstressed. Uniforms are there for a purpose. And that primary purpose is to make soldiers identifiable targets in wartime so in order to protect civilian life. It is far harder to accidentally target civilians when the enemy is identifiable. For all the thousands of remarks made, especially by left leaning commentators, on civilian casualties in Iraq, Afghanistan and Israel … I’ve very rarely once seen blame squarely where it belongs, on those who are not wearing uniforms and are staging military operations in civilian locations, like communities, hospitals, schools and places of worship. How those who are captured who engage in these activities has some influence on how easy it is for others to follow suit.
  4. It has been said that the rule of law, not arbitrary behind the scenes adjudications should apply to these individuals. To that, we all might agree. However, there is no body of law presently in place to do so. Yet, we are rushing to trial in the absence of the same … with an “assurance” of a guilty verdict. Exactly how does that work?
  5. Police enforcement could indeed “catch” more criminals if it didn’t have to rigorously follow laws requiring and directing the treatment and standards of evidence. Soldiers on the battlefield have a different set of priorities and directives. In part this is because of the criminals being sought by the police are not as dangerous or as organized. Many if not most, do not ultimately resist arrest and few criminals are suicidal individuals with access to HE munitions. This is related to the prior point. The body of law and courts which judge these individuals must take into account different standards of evidence than is required in civil courts.
  6. Stepping back for a moment. Take for example, a hypothetical individual under trial. Imagine him to be a Saudi national, captured by US commandos in Pakistan who was a commander that has has fought and directed operations in Afghanistan and in other countries. What court should judge this man? Under what statues? Abstract this for a moment. You have a John Doe, caught by operatives of Nation A in the territory of Nation B. He has directed illegal terrorist and non-Geneva compliant operations in Nations C, D and E. Compare to Eichmann in Jerusalem. Jurisdiction is anything but clear.

OK. Here is an additional exercise for the reader. The above points were numbered for ease of reference … not by priority. There are two questions. What points did I miss. Are there considerations not mentioned here? What about the order of importance of the above points. What considerations take priority? What considerations are not so relevant?

10 Responses to On the New York Show Trial

  1. using your numbers:

    1. The law allows illegal combatants to be detained but if they aren’t to be charged with a crime they have to be freed as soon as possible. One problem with the framework of a ‘law on terrorism’ is that this creates many open ended situations. But generally the gov’t must show it has cause to hold someone, not simply declare that they are an illegal combatant and then hold them forever. Likewise the problem with NOT charging Khalid with a crime is that if it is established he is no longer ‘at war’ with the US then he must be freed. YOu can only punish people for crimes they are convicted of.

    1. a. BTW, I object to your use of the term ‘show trial’. I believe Holder’s assurances of a conviction are for the same reason that convictions were almost assured for people like Tim McVeigh and Charles Manson. The evidence against them proved them guilty beyond reasonable doubt. Nonetheless, the trials were fair.

    2. I don’t think confidential info should matter. The US has tried people accused of spying where the evidence was highly classified and the danger of it reaching places like the USSR was more serious given the more developed intelligence system they had. Also today numerous criminal trials feature informants and undercover agents whose identities must remain secret. Keep in mind defense lawyers are officers of the court first and I understand defense lawyers must achieve security clearence before they can access restricted data. The legal mechanisms exist to keep secret information secret. I’d say if information was really leaked in the 1993 trial that should be investigated. I suspect the ‘secret’ information was not as secret as depicted, but then only an investigation would be able to say for sure what happened.

    3. Be happy that they don’t wear uniforms. If they did it would be almost impossible to punish them. Uniformed troops are almost immune from prosecution unless its for war crimes. Granted 9/11 would qualify but probably not actions like firing on US troops in Iraq or Afghanistan.

    4. “Yet, we are rushing to trial in the absence of the same … with an “assurance” of a guilty verdict”. Again that’s not an unusual claim coming from a prosecutor. As for ‘adjudications’, there is only so much you can do with the law working with abstractions. The law learns and develops by doing which means actually hearing cases. This is why, for example, the Supreme Court will not issue ‘advice’ on, say, a proposed revision to patent law. It makes rulings only when there’s an actual case before it.

    5. True but we are not talking about military action anymore. Military decisions are not subject to judicial review. No one is proposing, for example, that the army get a warrant before giving the go ahead for a drone to attack a house. In the course of military action, though, crimes are uncovered hence the requirement that the judicial system try them. That is not new.

    6. Your hypothetical:

    Question 1: Is he a POW? The Geneva conventions do allow for irregular military forces and Afghanistan and Pakistan has them. If yes then those would apply and there is no punishment. I’ll assume he isn’t.

    Question 2: Is he a combatant. Here I beleive the current law is a military judicial tribunal with modified rules of evidence. If he is then he can be held *during hostilities* to be released when they end. If not he is released.

    Question 3: Is he guilty of a crime? Here the judicial system would try him. If convicted he is punished accordingly, if acquited he isn’t. Note that #2 is independent of #3. He could be found not guilty but still be a combatant….or in theory I suppose he could NOT be a combatant but guilty of a crime (say, for example, he was found running an opium trafficking business in Pakistan sending drugs to the US but wasn’t taking part in actions against the US military).

  2. In regards to #4, the war on terrorism has, IMO generated too much ‘departmentalism’. There seems to be this meme out there that everything can be handled by:

    1. Grouping everything related to terrorism into a box called ‘military’.

    2. Coming up with poorly reasoned arguments that if something is in a box called ‘military’ then it takes care of itself and should be allowed to ‘do its job’ without criticism of analysis by anyone else. While this might have started as a good intentioned attempt to let people get the job done, its turned into a dangerous ‘tuning out’. War is a society wide decision and action, it’s not something handled only by a tiny portion of the population thereby allowing everyone else to worry about other things. Law must develop to handle an intense effort against terrorism.

    Now here’s something related that bothers me.

    This morning I heard a report on the radio about some Sudanese men being charged with aiding terrorism. The case appears to be that they recruited Sudanese members to fight on one of the sides of the civil war they are having there. I suppose somewhere this side is on a list of ‘official terrorist organisations’. The US does have the right to regulate what people do inside its borders….but I wonder how blurry this can get.

    After 9/11 the US added Chechyan independence groups to its official terror lists, in return Russia supported some of our efforts in Afghanistan. Now put this together with Wiggins. They are a Chinese group who wants independence. A few were picked up in Afghanistan and while they have been cleared of any attacks on the US they are still being held because there’s nowhere to send them. If sent to China they will almost certainly be tortured and killed. Needless to say, China views them as terrorists.

    Now since its techically a crime for anyone to aid an official terrorist organization and terrorist organizations are declared such, sometimes, by political pressures, does this mean that we could end up arresting people in distant lands who never fought against the US or its allies and end up putting them on trial for fighting against countries like China all in the name of a ‘war on terrorism’? Maybe they are terrorists against China but until China’s judicial system becomes more respectable, I don’t think the US should go to any lengths to help it out.

  3. Boonton,
    #1 “the law …” What law? I seriously think there are jurisdictional questions here that you are dodging. You offer, “You can only punish people for crimes they are convicted of.” You can only be charged with crimes for laws under which you are subject. A foreign national on foreign soil is subject to US statute and law.

    #1a I’ll continue using show trial until you convince me that there is some reasonable jurisdictional and legal basis for a trial.

    The Nuremberg trials were somewhat similar. Those were show trials as well, i.e., trying people for not breaking the law of their own country.

    #2. I need to use this particular technique of yours. Deny the existence of a thing when it is inconvenient.

    #3 I am not happy they are not wearing uniforms. Your reasons are dumb. This conflict would be over if the enemy was identifiable.

    #4 Yes, the courts don’t write laws. Yet … oddly enough that’s what your asking this show court to do.

  4. 1. I’m not quite sure about that. A foreign national that is on forieng soil may still end up subject to US prosecution. But what’s your point, if the person is in US custody then its the US gov’t that is either going to punish him or free him.

    1a. Reasonable jurisdictional and legal basis for the trial? Are you serious? 9/11 was a crime that happened on US soil. Assuming the evidence is there why would there be no such basis? If, say, a Mafia boss, in his Italian home, orders a hit on someone in America you think there’s a serious jurisdictional question of whether he could be tried in the US for murder if he was captured?

    Show trials are trials with a predetermine outcome whose purpose is something other than doing justice. The Stalin show trials were meant to instill fear in the population, for example, not prove the defendants were guilty of the crimes they were accused of. Nuremberg raised the question of both ex post facto laws and whether human conduct could be regulated by certain unwritten laws that exist above national laws. That’s a good legal question but I don’t think its fair to declare Nuremberg a ‘show trial’ because of that.

    #2. I don’t deny its existence but I don’t accept its been established either. My point is whether or not its true, the fact is we have a very sophisticated legal system that has had plenty of cases already that dealt with both classified information and the need to keep certain data secret. The tools and techniques exist, if they broke down in the WTC case then that should be investigated and addressed, that’s all.

    #3. That’s fine, nonetheless the fact remains punishment follows from them not wearing uniforms. If you are going to take as skeptical view of Nuremberg then it would be basically impossible to punish just about anything they would do.

    #4. I didn’t say courts write laws. Law, though, does get produced through cases and courts hear cases. Instead of repeating the standard right wing mantras you should read a bit about how the legal system actually works. From the days of the English common law, the actual cases shape the system as much as the written laws if not more so. Playing the armchair lawyer thinking about the law in the abstract is not a substitute for working actual cases. The system needs to try terrorism cases for the same reason a ship building firm needs to launch their products in water.

  5. Boonton,

    A foreign national that is on forieng soil may still end up subject to US prosecution.

    How?

    But what’s your point, if the person is in US custody then its the US gov’t that is either going to punish him or free him.

    What does that have to do with courts?

    Reasonable jurisdictional and legal basis for the trial? Are you serious?

    Are all the Guantanamo residents interned in direct connection to 9/11? What other justifications and “laws” do we have to hold/punish them.

    Show trials are trials with a predetermine outcome whose purpose is something other than doing justice.

    That’s right. But the purpose is not necessarily negative nor is the term automatically pejorative. The Nuremburg trials were in fact show trials. Their purpose was to record and put in the public record and consciousness what sorts of things were occurring in Germany. You claim:

    Nuremberg raised the question of both ex post facto laws and whether human conduct could be regulated by certain unwritten laws that exist above national laws. That’s a good legal question but I don’t think its fair to declare Nuremberg a ’show trial’ because of that.

    ex post facto law is not justice and not law. You’re premise is that show trial is necessarily wrong and therefore Nuremburg is therefore not a show trial. Escape the conviction that all show trial is wrong and you’re free to allow Nuremburg to be defined a show trial.

    The tools and techniques exist, if they broke down in the WTC case then that should be investigated and addressed, that’s all.

    No. That’s “not all.” It means we need to, prior to embarking on a program of trying dozens or hundreds more individuals in public trials … to establish what broke down and make sure ahead of time that there won’t be a repeat.

    If you are going to take as skeptical view of Nuremberg then it would be basically impossible to punish just about anything they would do.

    I’m unclear on why you think punitive measures resulting from show trials are not punitive or are impossible.

    I didn’t say courts write laws.

    Oddly enough, that’s not what I said (or at the very least meant). I understand courts have a part in forming law. But do you really think a public court show trial in New York is where we should start in trying to craft a policy and procedure for dealing with 21st century international terror. Why do you want to keep the Legislature out of the picture? Shouldn’t the Senate have a role? If so, where do they come in here? Shouldn’t there be some deliberation on this prior to a trial? What is the rush?

  6. How?

    Well I gave you one example that would apply to 9/11. Committing crimes against the US. A more mundane example I recall from a few years ago was a Russian software developer who attended a conference in the US. He was arrested because he was accused, while in Russia, of violating intellectual property of US firms.

    I think this question would be more difficult if the US was putting someone on trial for committing a crime on foreign soil against foreigners. If, say, a man in Afghanistan killed his Afghanistani wife and then ended up in the US on trial for murder I’d be more sympathetic to your claim that there was no jurisdiction.

    Are all the Guantanamo residents interned in direct connection to 9/11? What other justifications and “laws” do we have to hold/punish them.

    From what I’ve read, out of a few hundred we have maybe 60 or so who can be said to have committed crimes directly agaisnt the US (such as attacking US soldiers). Beyond that, as I said, we can only hold people if they are combatants and in the case of a few Chinese dissidents if we literally have no place safe to send them.

    That’s right. But the purpose is not necessarily negative nor is the term automatically pejorative. The Nuremburg trials were in fact show trials. Their purpose was to record and put in the public record and consciousness what sorts of things were occurring in Germany.

    Except the Nuremburg trials were not predetermined. Some were found not guilty and others were found guilty of lesser crimes.

    ex post facto law is not justice and not law. You’re premise is that show trial is necessarily wrong and therefore Nuremburg is therefore not a show trial. Escape the conviction that all show trial is wrong and you’re free to allow Nuremburg to be defined a show trial.

    Perhaps you should present a more rigerous definition of a ‘show trial’. So far you seem to simply define it as one where ‘no law’ exists. Yet the most famous show trial was Stalin’s and law did exist, the USSR had clear codes on the books regarding treason. The trials were ‘show’ not because they were debating laws that weren’t on the books, they were ‘show’ because their outcome was predetermined.

    No. That’s “not all.” It means we need to, prior to embarking on a program of trying dozens or hundreds more individuals in public trials … to establish what broke down and make sure ahead of time that there won’t be a repeat.

    Yea that’s more or less what I said. Glad you agree with me except I would add we need to establish there really was a breakdown….something I want to see a little bit more data on.

    Oddly enough, that’s not what I said (or at the very least meant). I understand courts have a part in forming law. But do you really think a public court show trial in New York is where we should start in trying to craft a policy and procedure for dealing with 21st century international terror.

    Short answer yes. Longer answer is that we already started and this is simply a continuation of that, and not a very notable one at that considering NYC has already had at least two major Islamic terrorism trials.

    Why do you want to keep the Legislature out of the picture? Shouldn’t the Senate have a role? If so, where do they come in here? Shouldn’t there be some deliberation on this prior to a trial? What is the rush?

    Starting with the last first, the rush is that justic delayed is justice denied. A man is accused of participating the 9/11 attacks. It has been nearly a decade since. He should be tried and punished if guilty.

    As for the Senate and Legislature, no they don’t have a role. Prosecutions are handled by the Executive Branch, specifically under the Attorny General. This has been the way Anglo-saxon law and government developed for hundreds of years now. The Senate’s role is writing laws and per the Constitution establishing courts inferior to the SC. Individual prosecutions, however, are not voted on or debated by the Senate.

  7. Boonton,
    I find your position that the legislature has no part tin making law unusual stance.

    From what I’ve read, out of a few hundred we have maybe 60 or so who can be said to have committed crimes directly agaisnt the US (such as attacking US soldiers).

    Nice to hear that you agree that there is a lack of law regarding these individuals.

  8. I said no such thing, such individuals are probably in violation of US law and subject to prosecution. In fact, I’d suspect the laws against providing aid to organizations officially listed as terrorist is probably so broadly written that it theoretically subjects every living human including those who are not in the US. While I’m not a lawyer, there’s probably some overreaching in those areas of the law raising some difficult legal issues when the gov’t, say, tries to prosecute a man who simply served as a driver for Bin Laden.

    But how you go from that to asserting that there is no law validly governing directing a terrorist attack on US soil is beyond me. In that aspect the law is crystal clear. Directing murder from foreign soil offers no immunity to US jurisdiction….nor does it offer immunity to other country’s jurisdiction. It’s well recognized law that if, say, you direct a murder in Ireland from your home in Chicago, Ireland can arrest you and put you on trial.

    I find your position that the legislature has no part tin making law unusual stance.

    Try to can the word games. I was more than clear. Prosecutions are an Executive function, writing laws is a legislative one.

  9. Boonton,

    It’s well recognized law that if, say, you direct a murder in Ireland from your home in Chicago, Ireland can arrest you and put you on trial.

    That’s on account of law in Ireland and extradition treaties … all legally well defined. When Eichmann was apprehended in Argentina (? … South America somewhere I don’t recall), Israel had no extradition treaty. He was captured by undercover agents, in an act illegal in the country from which he was taken. His trial was a media affair. His punishment and guilt was not in question during the trial. As you point out only a few dozen of the men are implicated in arranging attacks on US soil. The rest?

    Try to can the word games. I was more than clear.

    OK, fine. And you “can” the 5th grade tutorials and stop talking about executive and common law when I ask whether it might be germane to clarify the law (which is a legislative act). You could stop dodging the question over why you dismiss the notion that there isn’t some groundwork that should be established prior to trial in a public forum and debate.

    What men in Afghanistan did, was not in violation of Afghan law at the time and Afghanistan had no extradition treaty. Their acts where sanctioned by their state … not prohibited. What US statute suggests that US sovereignty is universal? Was Kennedy guilty of murder? (from wiki: According to the Family Jewels documents declassified by the CIA in 2007, one such assassination attempt before the Bay of Pigs invasion involved Johnny Roselli and Al Capone’s successor in the Chicago Outfit, Salvatore Giancana and his right-hand man Santos Trafficante. It was personally authorized by then US attorney general Robert Kennedy).

    Apparently this is not clearly as “illegal” as you might suspect.

  10. That’s on account of law in Ireland and extradition treaties … all legally well defined. When Eichmann was apprehended in Argentina

    You are confusing two different things. Extradition treaties talk about how law enforcement is allowed to operate cross borders. A lack of an extradition treaty, though, is not an offer of immunity.

    Say the US and Ireland have no extradiction treaty. If Ireland somehow gets a hold of you (say you take a vacation to London), they can still put you on trial for murder. Even if Irish secret agents sneak into the US and kidnap you, that doesn’t alter the fact that Ireland can put you on trial for murder. The violation of international law between Ireland and the US involved in kidnapping is a different issue.

    Of course, a lack of an extradiction treaty doesn’t make extradiction illegal. A country like Pakistan can choose to honor a request to arrest and extradict an accused criminal to the US even if no treaty exists. Whether such an act is legal under Pakistani law is a question for Pakistani lawyers, but whether it is or isn’t when the chap is in US custody he is totally within jurisdiction of the US legal system. Since Kalid was captured with the help and permission of Pakistan’s gov’t I’m not sure how you can base a defense on illegal extradiction?

    His trial was a media affair. His punishment and guilt was not in question during the trial. As you point out only a few dozen of the men are implicated in arranging attacks on US soil. The rest?

    I’m not sure how this consititutes a ‘show trial’, unless you are being very literal and simply mean that any trial that gets a lot of media attention is a ‘show trial’. Previously you’ve indicated you feel a show trial lacks some type of legal grounding but I don’t see how you support that charge in either Israel’s or the US’s case here.

    OK, fine. And you “can” the 5th grade tutorials and stop talking about executive and common law when I ask whether it might be germane to clarify the law (which is a legislative act). You could stop dodging the question over why you dismiss the notion that there isn’t some groundwork that should be established prior to trial in a public forum and debate.

    Lawmaking is a process that is continuous, not a ‘foundation’ that stays where it is once the concrete sets. Congress has passed laws regarding terrorism, it has passed laws regarding how captured suspects will be handled by the legal system and it will continue to do so. The system does not stop for Congress to ‘get it right’, Kalid is no different from Tim McVeigh or his cohort or the at least a dozen or so others who have already been tried and convicted of various acts of terrorism. And, as I tried to point out before you got all snippy with the ‘courts don’t make laws’ line, law making happens as a result of cases too. The laws that Congress passes are as much a result of cases the courts hear and what they find.

    What men in Afghanistan did, was not in violation of Afghan law at the time and Afghanistan had no extradition treaty. Their acts where sanctioned by their state … not prohibited. What US statute suggests that US sovereignty is universal? Was Kennedy guilty of murder?

    That would be a great argument if they were on trial before an Afghan court and you were an Afghan lawyer. They are on trial before a US court and the US has a law that says its illegal to conspire to hijack airplanes, destroy buildings and kill people. That does not require a law asserting universal sovereignty.

    In answer to your question, yes Cuba could try Kennedy for attempted murder since I’m sure Cuba has a law against trying to kill its leader. Could they force the US to extradict? Not without a much bigger army, which is why they probably have never pressed the issue….that and Kennedy being dead makes the whole thing rather moot. Today there are certain countries Dick Cheney will not travel too because he is under indictment for authorizing torture.

    Here is where your point has some merit. Say an Afghan man kills his daughter in an honor killing and is not charged with any crime in Afghanistan. Say the US passed a law prohibiting honor killing without specifying any limit on its jurisdiction. When flying to Mexico for a visit, the man has a layover in Miami and is arrested there. I haven’t found a definite answer to whether or not US law could work that way but I suspect it can.

    However I did find this:
    http://books.google.com/books?id=vzHQUDvsPr4C&pg=PT220&lpg=PT220&dq=US+criminal+law+applying+to+foreign+countries&source=bl&ots=OoWpZJyHoH&sig=sILKSs9IZ_3CjV3rSEqzJyjtI6Q&hl=en&ei=wuoLS_P2AYGvlAf5-bWgBA&sa=X&oi=book_result&ct=result&resnum=5&ved=0CB0Q6AEwBA#v=onepage&q=&f=false

    In order to charge a person with a crime, general jurisdiction requires that the gov’t produce a person in the county or place where the crime is alleged to have occurred. It is well recognized that criminal acts that cross jurisdictions allow for prosecution in either….in other words ordering a hit in NYC on someone in LA can result in a charge either in NYC or LA…but double jeopardy says not both. Conspiring to conduct a terrorist attack on the US from Afghanistan may or may not violate Afghani law (to the degree it had any), but it clearly violates US law.

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