-Caveat Lector- http://www.gulf1.com/COLUMNS/Pappas/22.htm
WJPBR Email News List [EMAIL PROTECTED] Peace at any cost is a Prelude to War! The ACLU and Military Commissions There is escalating debate, fueled by the American Civil Liberties Union (ACLU) and fostered by the media, about Military Commissions. This following identifies and briefly discusses some of the salient issues. Military Commissions are not tribunals and they are neither courts-martial nor courts of law. Military Commissions have their origins, as far as this country is concerned, in English law that was adopted by the United States upon its independence from England. There was a time when defeated soldiers/officers were summarily killed, and if they were not killed, sometimes they were enslaved or otherwise subjugated. With the passage of time and the advent of more civilized warfare, (now there's an oxymoron), some prisoners were brought before panels of the more enlightened European countries, composed of military officials and were afforded the right to a defense. Fast forward. About 2500 International Tribunals were impaneled following World War II. They were composed of selected civilian officials. As an aside, two notable US Military Commissions were impaneled by General MacArthur involving two Japanese Generals; both were executed, one by firing squad, the other by hanging. Where it could be argued that international terrorism is an inherently international issue that the UN should establish Tribunals to meet out justice equitably. I disagree. The attacks of September 11th were perpetrated against the United States; the Federal Government should not abrogate US sovereignty to any International Tribunal where it is more than likely to become an international media and propaganda circus than trial proceedings. For similar, but not all-inclusive reasons, proceedings should not be broadcast live. Heretofore, Military Commissions use by the United States has been: to try lawful combatants for violating the Law of War, or for committing crimes against humanity; to try unlawful combatants, such as spies, unorganized guerrilla fighters, and civilian terrorists for violating any law; and, to try anyone for violating an law or military rule in a place under martial law. At present, the rules of evidence, exclusions, witnesses, proof and punishment are being devised by the Secretary of Defense with guidance contained in the President's Military Order: Detention, Treatment, and Trial of certain non-citizens in the war against terrorism. In the order, Section 2. (a), President Bush foreclosed the possibility of trying American citizens Military Commissions are Constitutional, in the US Code and are the prerogative of the President as spelled out in US Code, Title 10, Article 36, of the Uniform Code of Military Justice, (UCMJ). They are an extension of warfare and are not under the jurisdiction of the Justice Department or other civil forum. The President has the authority to remove an applicable case from District Court jurisdiction to a Military Commission and vice versa, as circumstances warrant although it has never been done. With that noted, it could happen, and it is the writer's hope that upon promulgation of the rules for Military Commissions by the Secretary of Defense, Moussaoui will be moved from District Court jurisdiction to a Military Commission for trial. There have been challenges that made their way to the US Supreme Court as to sentences, findings, (some challenges were before findings), and for injunctive relief. Where the Supreme Court has repeatedly ruled that Military Commissions are Constitutional, it has held that American citizens cannot be tried thereby as in "Milligan," a northern sympathizer with the South who acted on his own, on behalf of the Confederacy during the Civil War; but excepted in "Quirin," the case of an naturalized American citizen, "Haupt," who was as a German spy during WWII and who, when captured, claimed American citizenship and the associated "Milligan" exemption. Whereas Milligan acted on his own, Haupt by virtue of his allegiance to a foreign enemy and his taking up arms on behalf of that enemy, was subject to military punishment, rather than criminal justice. Haupt was "fair game" for a Military Commission. Courts Martial are reserved for American military personnel who violate the UCMJ and for prisoners of war who violate the rules while in captivity and consequently may, but are not required to be tried by court-martial. What about "American Taliban," Walker? Since Walker rendered allegiance to the Taliban, engaged in combat on their behalf, subjected himself to their control, it is the writer's opinion that he may have forfeited his American citizenship. A determination as to citizenship is likely under active consideration. If he is determined to have forfeited citizenship, he could be tried before a Military Commission if it is determined that he committed a violation of the Law of War or other infractions noted above for lawful combatants. If he is determined to be an American citizen, he could be tried for treason. On the other hand, Moussaoui, the French-Moroccan who is presently arraigned before the District Court in Virginia, in the writer's opinion, should be removed to a Military Commission once the specifics are issued by the Secretary of Defense incident to the President's previously mentioned Military Order. Upon careful review of the Military Order one will find that it is established incident to and consistent with the US Code, and in both judicial and historical precedent. So why is the ACLU making it an issue? Again, in the writer's opinion, it is to generate notoriety for self aggrandizing purposes, cast itself as the "knight in shining armor" for so called, "down trodden" minorities, bring money into ACLU coffers, provide full employment for its attorneys, and attempt to dissipate the country's focus on bringing swift, sure justice to the perpetrators of the September 11th attach on America. i.e. Let's drag this thing out, harvest a lot of money, gain status, and perpetuate an atmosphere of legal chaos to maximize the effects, (i.e. something like the legal and media bonanza of the O.J. Simpson trial), with symbiotic support of the liberal media which would be acting in its own economic interests. The President is on the right track; he is abiding by the Constitution and is acting in the best interest of all Americans. Should America abrogate its right to try qualifying individuals at Military Commissions? Absolutely not! US Military Commissions are an extension of the warfare effort to combat the terrorists that attacked this nation; the President should continue doing precisely what he is doing-and I applaud him. Finally, any orders, and regulations…modes of proof, processes, rules and etc., devised by the Secretary of Defense for trial of those brought before Military Commissions will be infinitely fairer than the terrorists and their controllers afforded the occupants of the World Trade Center, the Pentagon, and the passengers of the plane that crashed in Pennsylvania. Semper Fidelis. Robert L. Pappas, Col. USMC (RET) *COPYRIGHT NOTICE** In accordance with Title 17 U. S. C. 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