----- Original Message ----- From: "Erik Reuter" <[EMAIL PROTECTED]> To: "Brin-L" <[EMAIL PROTECTED]> Sent: Monday, December 03, 2001 7:48 PM Subject: Re: Secret Military Tribunals
> On Mon, Dec 03, 2001 at 01:41:37PM -0600, Dan Minette wrote: > > > So, I will not be upset if we hold less than a score of military > > trials for AQ members we capture in Afghanistan. I would be upset > > if the trials were secret, but I would not be upset if we used > > information that we did not make public. > > What about people who have been living in the US who are arrested and > held without a just cause? > I can be corrected on this, but I don't think that a foreigner can just be picked up off the streets and arrested. If the foreigner violates his/her visa, then they can be arrested for that. I know that the attorney general has stated no one who has not violated a law or the conditions of their visas have been picked up. People who are in the country illegally can be detained for a significant amount of time, with bail and without formal charges. That certainly is open to abuse. After a point, the government should either charge them with something else or deport them. However, in and of itself, living in a country illegally can be grounds for arrest. I know that those being held have access to lawyers and, if they believe that they are in the country legally, can sue to be released. IIRC, one person has already been successful in winning his/her release that way. BTW, I think that listening in to phone conversations between a person and their lawyer is a violation of legal rights. Its hard to have a right to counsel if you can't talk openly and honestly to that counsel. IIRC, JDG made this same point earlier. > > Not if it means assuming guilt without a fair trial, which is implied by > your statement. Well, I certainly didn't mean to imply that. Its more a matter of considering the balance between the risk of harming someone who is innocent and the risk to the nation. If one talks about an individual accused of a crime, then the risk should be fully weigh > > > Now, there is a risk of a witch hunt for foreigners, I realize that. > > That's why numbers are important. If a handful of foreigners in > > the US were tried openly in military courts, then I wouldn't be too > > worried about that. If all those still detained on visa violations are > > tried that way, I'd be worried. > > I feel strongly that this is a dehumanizing line of reasoning. It is > okay to deny human rights as long as it is just a small number of > people, and as long as they aren't my friends or family. > Well, its not exactly that. Let us consider military justice. In 1972, my draft number was 006. I was definitely a candidate for the draft, and was lucky to fail the last physical for 'Nam. If I had been drafted, I would have been subjected to military justice. Being drafted and subjected to military justice would not have automatically been a denial of my human rights. Personally, I think that I would have been at greater risk for my rights being denied, but I don't think it would be automatic. We have had a separate military justice system for many years. I'm guessing from the founding of the country, but I can stand to be corrected on that. Since that justice system does not have the same safeguards as the civilian justice system, I would not want that justice system used indiscriminately during a war. There is a significant possibility of abuse if that happens. But, since there were clearly agents of a foreign power attacking the United States, and it is reasonable to assume that there still are, a case could be made that there is some valid use of such a court. Further, it is reasonable to assume that citizens of the US have their primary loyalty to the United States and citizens of foreign countries have their primary loyalty elsewhere. Time and again, Americans have fought for their country against the alliance that contained the country of their family's origin. Based on that, the tradeoff of risk/reward for including Americans in military tribunals should tilt more against tribunals than foreigners. Having said that, I think numbers can be used to indicate intent. If the Bush Administration was rounding up thousands of Arab nationals and pushing them through the military court system, I'd be very angry and upset. I'm upset with the denial of attorney/client privilege. If everyone now detained were to go through military court, I would have a very hard time buying the argument that they are all important terrorists. But, if one or two people went through that system, then the argument that this was a special case holds more weight. One or two special cases has more verisimilitude than 1000 special cases or 100 or even 10. Limited use is an indicator of careful use, which limits the potential for abuse. I could buy the argument that the information, if revealed in public, would cause the death of an intelligence agent or officer. With the tradeoff between the risk of governmental abuse of rights and the risk from criminals who may go free because of the safeguards in our judicial system, I definitely side with the safeguards. In short, while there is a risk of abusing human rights in that case, I think that the both a lower number of cases and the clear indication of selective use decreases the risk. (In a sense, I'm saying that the risk goes somewhat at the square of the number of cases.) Dan M.
