The Hamdan trial has heated up the debate on what is right, and what is wrong, about the entire process for the military war crimes tribunals that the U.S. government will be conducting for Guantanamo Bay "detainees." But what's really remarkable is how the news media is feeding this debate with point-counterpoint arguments masquerading as "news" articles.
The Washington Post has published an article on the subject, as just part of its regular "news" reporting. You can read it for yourself here. Clearly it wasn't enough to report that the tribunals were starting, or what the procedures for the hearings were. The article had to move on and publish one-sentence quotes on the debate over Guantanamo - as if insight could be found in 5 second snippets.
Up first is Tom Malinowski (from Human Rights watch) - he says: "This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil. . . . The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."
Apparently speed is the defining characteristic of a premier system of justice. CLARINET Esq. can't tell from the quote - is Mr. Malinowski mad because it took so long, or because the kangaroo trapper is free? Presumably, he is now free to trap kangaroos (rather than bomb civilians), because Mr. Malinowski didn't call him an "Australian terrorist."
The next critic quoted in the article is the president of the National Institute of Military Justice, who finds the rules used by the military tribunals offensive. He's advocating that the Federal Courts try detainees like ordinary criminals - He notes that the Justice Department has managed to obtain 80 terrorism convictions since September 11.
He is correct - the criminal justice system has been working, for the cases that we've allowed the criminal justice system to have. But presumably most of those criminals were not taken from a battlefield. Thus, the criminal courts haven't actually dealt with large numbers of extraterritorial terrorists. Not really the best comparison.
The article's author doesn't portray support for the military commissions as any less dogmatic than critics.
D. Hamilton Peterson, who lost two family members to terrorism on September 11, is quoted as saying: "I find it ironic that there is this tremendous rush to unfairly discount a very well-thought-out military system. . . . Mr. Hamdan and these other suspects are getting more due process than any of the people who were beheaded by the terrorists in Iraq and Afghanistan."
Right. And the point is? Any process would be better than the process a terrorist death squad uses. CLARINET Esq. hopes that we can do better than that.
Another skewed quote, from David Rivkin, a former Justice Department official is: "The notion that you're going to obtain 'CSI'-level evidence on the battlefield is absurd."
Well of course it's absurd, but then CSI level evidence doesn't appear in most trials anyway. Most criminals are convicted on based on the statements of others, under oath, and subject to cross examination. CSI is not required. How, after all, are people convicted of war crimes in the Hague at the international war crimes tribunal?
This isn't reporting on the events - it's reporting on an argument. Most of the quotes are misleading, logically flawed, or both. This might as well be Jerry Springer.
Its called justice when the innocent go free and the criminal goes to jail. The defining characteristic of a justice system is justice. The military tribunals are definitely stacked against defendants - maybe more than is ethically within bounds. For example, coerced statements are not known for reliability - yet, those statements are admissible. People tend to say whatever they think is necessary to get the coercion to stop. The statements of others, who aren't present for cross examination, are not known for reliability - yet, those statements will be admissible. Without cross examination, hearsay statements are consequence free - the statements can't be exposed as lies.
Neither hearsay evidence nor coerced evidence is permitted in an American criminal court. Thus, it should give everyone pause that this kind of evidence is permitted in these military tribunals. These are legitimate complaints; our willingness to provide justice is important to the continuation of our democracy.
But, we should also be clear - people who have committed genuine war crimes should be imprisoned. There is a legitimate balance. There are good reasons for relaxing the rules on hearsay. Among them, the inability to bring witnesses from a battlefield, and the inability to protect civilians witnesses who are outside U.S. sovereign territory. Moreover, coercion (in American courts) is practically assumed if the Mirandra warnings are not given to the person in custody. So criminal court treatment of coercion may not be appropriate.
There is legitimate debate that involves more than a single sentence of espoused rhetoric. But articles like this Washington Post article do very little to illuminate, and quite a lot to divide. Surely print media can do a better job than this. Give us the facts and leave the sound bytes to television.