Monday, February 11, 2008


War Crime Tribunals

The Pentagon today has announced that 6 Guantanamo detainees will be tried for war crimes, and will face the death penalty. This makes some sense. The 6 are all associated with the 9/11 attacks. The are:

Here's what bugs me, the rights afforded to the accused, which are:

In the military commissions process, every defendant has the following rights: The right to remain silent and to have no adverse inference drawn from it; the right to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; the right to examine all evidence used against him by the prosecution; the right to obtain evidence and to call witnesses on his own behalf including expert witnesses; the right to cross-examine every witness called by the prosecution; the right to be present during the presentation of evidence; the right to have a military commission panel of at least five military members determine his guilt by a 2/3 majority, or in the case of a capital offense, a unanimous decision of a military commission composed of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court. (Emphasis added).

What? We're giving them the ability to understand and assess our counter-terrorism abilities? We're burning our spy sources? Other than the trier of fact, how is this different from the rights of a defendant in federal court? (Which hasn't worked out that well). I'm at a loss here.

And why is attacking the Pentagon a war crime, other than the fact that the guys doing it were not in military uniforms? This is a question which stumped me regarding the earlier batch of detainees facing war crime tribunals.


"Article 37.-Prohibition of perfidy

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:


(c) The feigning of civilian, non-combatant status;...."

By commandeering a civilian aircraft, the attackers "feign[ed] a civilian, non-combatant status" in a successful attempt "to kill, injure or capture an adversary".

It's not the target (in the case of the Pentagon) that causes the problem, it's the method.
To all and sundry,

For people of Roger's and my generation and older, a common questuin has always been: "Where were you when Kennedy was shot?"

Inasmuch as I was 10 years old when that happened, I will arbitrarily follow that age and say that for people currently 16 and older, the question is "Where were you on 9/11?"

Since earlier this week when the Pentagon announced that 6 Guantanamo detainess would be tried for war crimes, I have been considering that prospect and will take this opportunity to share my thoughts.

I have no opinion as whether these individuals should be afforded constitutional protections, probably not.

I have concluded, however, that their trials should be public and held either in Washingto, D.C. or NYC. I realize that there may be issues of national security but I am sure that after 6 and 1/2 years some smart prosecutors should be able to try these guys w/o giving away any vital secrets.

Having read Aristotle, I think catharsis is important. In consideration of the hits we have taken on the stage of world wide PR and in consideration of our belief that we are a nation of laws. these tribunals should be open, public, and televised. Let them be witnessed by a candid world and let whatever rules will govern their proceeedings be made public.

Will publicizing such proceedings incite some of the Muslim world. I am quite certain it will. Let our enemies take a public stand on their endorsment of terror. Let whose known rule of warfare is the undistinguished destruction of all ages, sexes, and conditions advocate the killing of innocents.

Let this be a litmus test for our friends and allies in the Muslim world to take the opportunity to denounce terrorism committed by theior countrymen and coreligionists.

Let the people of New York, and all those affected by the attack on the twin towers have their day in court--not to participate but to observe. Let those connected w/ the attack on the Pentagon be able to observe justice at work. Let all those connected w/ United flight 93 have their day.

Justice should not be dispensed in a camp on the tip of Cuba. Justice should be dispensed at the scene(s) of the crimes.
Thanks, Doug. Always helpful. But the charge does turn on not wearing uniforms, does it not?
Anon. I'm with you on the good things you say about public trials of the surviving 9/11 conspirators. However, as a former prosecutor, I have to say that under our discovery rules, there is no way a smart prosecutor can shield vital secrets from the enemy. Not possible! and the cleverness of the prosecutor is not the issue. See Andrew McCarthy on this over at NRO. He was a long time federal prosecutor and is much, much smarter than I am. You have to protect your spy sources or they quit being effective. This sort of intelligence is more important in the current sort of war than in more usual sorts of wars. The PR effect (sorry to damn it with faint praise) of open trials would not make up for the damage done to the general war effort. Thanks, all, for the comments.
"But the charge does turn on not wearing uniforms, does it not?"

No. Had the airplanes been commandeered by Afghani soldiers, in full uniform, with an intact command hierarchy, the action would still be perfidious. The use of a civilian airliner was sufficient to qualify for "feigning of civilian, non-combatant status".

Further, from Article 23 of the Annex to the Fourth Hague Convention on the Laws and Customs of War on Land:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden -


To kill or wound treacherously individuals belonging to the hostile nation or army;"

Further, from the Fourth Geneva Convention, 1949:

"to this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;"

In addition, there is the issue of shielding behind civilians, which is a separate war crime:

Fourth Geneva Convention:

"Part III. Status and Treatment of Protected Persons

Section I. Provisions common to the territories of the parties to the conflict and to occupied territories

Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof...."

Civilians are "protected persons" in the language of the treaty, and the civilian passengers were not "protected especially against all acts of violence or threats thereof".

"Art. 51. The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces."

If the attack on the Pentagon is to be considered a military act, then compelling the passengers and crew of the aircraft to participate would violate this article.

Finally, as to jurisdiction:

"Art. 146. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.


"Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or
property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."
If they had been in Afghani uniforms, we wouldn't have let them on the plane. Probably. Is it OK to summarily execute spies, saboteurs and other illegal combatants? Just asking.
"If they had been in Afghani uniforms, we wouldn't have let them on the plane. Probably."

The other side in a war gets to make decisions, too. In 1944, we didn't let the Germans surround Bastogne. They did it anyway.

But that's not relevant to the issue of uniforms. With or without uniforms, the commandeering of a civilian aircraft with civilian crew and passengers aboard with the intent of using that aircraft as a missile is a war crime regardless of the target.

"Is it OK to summarily execute spies, saboteurs and other illegal combatants? Just asking."

For spies, the answer is no. Due process is required. See Hague IV:

"Art. 30.

A spy taken in the act shall not be punished without previous trial."

Illegal combatants are a harder question. I think that they are not covered by treaty or custom, thus leaving their treatment to the discretion of the captor.
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