Balkinization: Judge Brinkema on the Adequacy of Trying Terrorists in District Court

Comments:

Garth: If you know how to shut it off so as to make it optional, we'd be much appreciated.

# posted by

It all depends on what you mean by a National Security Court. The Military Commission Act creates creatures of the Executive subject to Judicial review. I prefer to look at whether these hybrids are playing a judicial function. As I said at the conference, we should go back to Justice Jackson's view of minimum requirements for a Nuremberg type structure (ASIL May 8, 1945 available at www.roberthjackson.org), to wit:

1. That the defendant be able to be found innocent (or acquitted) in the process.
2. That the defendant be able to be represented in the manner they desire.

In addition to being in complete violation of our international law obligations under the Geneva Conventions (crime definition and POW or non-POW status definition), the structure of the MCA is essentially to permit evidence that is coerced to be introduced. They give Kangaroo Courts a bad name. So I would not even give them the blessing of being called a National Security Court. I would call them National Security Whatchamacallits or machines for political national security show trial vehicles (pnsstv's).

I think the MCA is the "camel's nose in the tent" and that we should repeal this act as soon as possible and bring ourselves back into line with more traditional structures or the law of war or criminal courts (supporting Judge Brinkema's view). I am tired of the panic and improvisation that has gone on since 9/11 in this domain. The MCA and a National Security Court would be more of that kind of improvisation. A bad idea.

Also, please note Judge Brinkema's direct comment to Legal Adviser John Bellinger on what are the issues needed to be addressed from her experience, "We should not torture," said Judge Brinkema.

Best,
Ben

# posted by

Benjamin Davis : 1:24 PM

Judge Brinkema makes a rather strong case that civilian federal courts cannot balance the necessity to classify material and the requirements of the Confrontation Clause and the death penalty sentencing rules in the case of foreign enemy combatants.

1) Judge Brinkema admitted that she was not qualified to make classification determinations, but she pressured the government to reduce and eliminate classifications in order to try the case.

2) When the 4th Circuit reversed her initial rulings on the subject and allowed the government to present redacted summaries of the testimony of other enemy combatants, Judge Brinkema allowed the defense to use any part of the summary it wished, but barred the government from offering what it wanted because the material could not be cross examined in open court and to "even up the playing field."

3) DOJ and/or the defense attorneys were constantly leaking the classified information to the Washington Post.

4) Judge Brinkema never had to deal with an open trial where the government would have to choose to either disclose classified information or keep the material classified and very possibly allow an al Qaeda terrorist to be acquitted and freed. Rather, the defendants pled.

5) Finally, Judge Brinkema believes that redacted videotapes would be an effective compromise to bringing in testimony of enemy combatants while keeping classified information (at least what the court considers properly classified information) out.

This would make prosecution extremely difficult. Every jury in the world will wonder what was kept out and every defense attorney worth his or her salt will argue alternative scenarios and imply that the evidence being excluded would prove these alternative stories.

It is possible that the Court could instruct the jury that she had listened to the testimony and the redacted testimony did not apply to the case. However, that puts the judge in the jury's role of fact finder.

All of these problems can be alleviated in a military tribunal where the fact finders can see all the evidence in closed session and both sets of military attorneys can be trusted to handle classified materials without leaking them to the WP.

# posted by

Bart DePalma : 3:00 PM

I am not going to listen to an entire address (I have work to do), but could someone summarize in a paragraph why administrative tribunals are good for determining the rights of U.S. armed forces members, or aliens seeking asylum, or U.S. taxpayers, but not for accused terrorists captured by the U.S. military? Or is there a new movement afoot in the academy to argue that administrative tribunals are bad across the board?

Please note, this is an entirely separate issue from whether some particular provision of the MCA is good or bad, as discussed by Benjamin Davis. I take it Judge Brinkema is arguing that administrative tribunals are inherently bad for the purpose of trying accused terrorists in military custody, not that some particular feature of the MCA is objectionable.

# posted by

sean : 4:01 PM

why administrative tribunals are good for determining the rights of U.S. armed forces members, or aliens seeking asylum, or U.S. taxpayers

Administrative tribunals do not condemn people to death.

The apparent exception, "determining the rights of U.S. armed forces members," proves the rule. Soldiers are judged by courts-martial, which have their own venerable rules of due process.

I would be fairly satisfied to see alleged "enemy combatants" tried by legitimate courts-martial, but not by the kangaroo tribunals set up by the MCA and the Bushies.

# posted by

Anderson : 5:18 PM

sean:

I have no problems with administrative hearings for the sole purpose of determining combatant status under the GC. However, I agree with Anderson that administrative hearings are insufficient for war crimes trials with heavy criminal punishments up to death.

Where Anderson and I part company is over what constitutes sufficient procedure for a war crimes trial for unlawful enemy combatants. The courts martial is simply the military version of a the civilian federal criminal trial and will share the same problems as that procedure. The Supreme Court has already held that unlawful enemy belligerents have no right to a full blown criminal trial and may be tried for war crimes by military tribunal and that would appear to be the established procedure.

# posted by

Bart DePalma : 5:40 PM

"Bart" DePalma:

All of these problems can be alleviated in a military tribunal where the fact finders can see all the evidence in closed session and both sets of military attorneys can be trusted to handle classified materials without leaking them to the WP.

I've dealt with that little bolded part here.

But I've once again taken the liberty of carrying "Bart"'s little crusade for Stalin show trial over to my blog in a new post there.

Those wanting to engage in "Bartesque" discussion (including "Bart") are invited to discuss it over there.

Cheers,

# posted by

Arne Langsetmo : 6:23 PM

anderson:

The apparent exception, "determining the rights of U.S. armed forces members," proves the rule. Soldiers are judged by courts-martial, which have their own venerable rules of due process.

... and also a Constitutional provision excepting such cases from Article III courts, as the Ex arte Quirin court pointed out.

Cheers,

# posted by

Arne Langsetmo : 6:27 PM

Senior District Judge John Coughenour, W.D. Wa., has been speaking recently out here in Seattle about the same question, based on his experience presiding over the trial of "millennium bomber" Ahmed Ressam.

# posted by

Brendan McNamara : 7:30 PM

Why is everybody happy about the way Moussaoui was tried in US District court? He was one of the people sent to the US by KSM and Binalshiebh as part of 9/11 but proved so unreliable he was written out of the final attack plans and held for some possible future action. There is no meaningful way to distinguish him legally from al-Marri, who was sent to the US later by the exact same people to also conduct an act of sabotage. Yet al-Marri is held in military custody as an enemy combatant, while Moussaoui was tried on criminal charges. This difference makes no sense.

Mousaoui was arrested a month before 9/11. His case was allowed to proceed in civilian court because neither side objected and insisted he be transferred to military custody as would seem to be required by the logic the government has applied to every other case. The rule seems to be that once a case gets going, if both sides decide to ignore logic or consistency then the case has to continue on whatever mistaken premise it began, and if the defendant can be convinced to plead guilty to what is obviously the wrong charges, then everyone can be happy with the conviction. I do not see this as a model for anything that wants to call itself justice.

# posted by

HowardGilbert : 8:33 PM

This comment has been removed by the author.

# posted by

wg : 12:19 AM

... If you know how to shut it off so as to make it optional, we'd be much appreciated.

If not possible or easy do do make a habit of terminating your stories with appropriate markers. [end of post] or something to that effect, so when they see it they will know there is nothing "below the fold" other than DePalma and company. [end]

# posted by

wg : 12:22 AM

Why is everybody happy about the way Moussaoui was tried in US District court?

Because that is where terrorists ought to be tried.

# posted by

Anderson : 10:39 AM

anderson:

Why? Marty makes the same unsupported declaration.

# posted by

Bart DePalma : 11:53 AM

Why tried in district court? Because the GC allow signatories who wish to prosecute those who violate the GC (i.e., terrorists who target civilians) under either their existing civilian or military justice systems.

With the already disclosed bias in the trial systems created after the fact by the current administration, and the pressure and repercussions suffered by those military attorneys who attempted to impartially defend their clients, the idea is that a more defensible trial can be achieved in our civilian courts.

# posted by

Fraud Guy : 9:27 PM