Legal Commentary

Lieberman's Goal: Pushing All Terror Trials To Military Commissions?

By Big Tent Democrat

The Hill reports:

Sen. Joe Lieberman (I-Conn.) is planning to introduce a bill that would allow the government to take away citizenship from Americans who join foreign terrorist organizations. [. . .] "I think it's time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship [. . .] when they are apprehended and charged with a terrorist act," Lieberman, who helms the Homeland Security and Governmental Affairs Committee, said on Fox News.

If the legislation is made law, it would allow [citizens accused of being terrorists] to be tried before military tribunals. Lieberman, who is one of the most hawkish members of the Democratic caucus, believes military courts should be used to try terror suspects, not civilian courts.

(Emphasis supplied.) Clearly then, Lieberman's goal is not mainly about depriving citizens of their Miranda rights, but to deprive citizens of their Sixth Amendment rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Is Lieberman's proposal necessary or even relevant to attain the goal he seeks? Not that I can see. Sixth Amendment rights are not restricted to citizens. It really is not to the point.

Moreover, American citizens can be declared enemy combatants subject to military law and the laws of war. It is possible that the government could try to declare all accused terrorists of being "enemy combatants," thus making them exclusively subject to the Laws of War. Perhaps Lieberman should be looking at repealing criminal laws against terrorism if he want to avoid civilian trials and the strictures of the Sixth Amendment.

However, the spoke in that wheel is that terrorists would need to be charged with violating the Laws of War. In Hamdan v. Rumsfeld, Justice Stevens wrote:

All parties agree that Colonel Winthrop’s treatise accurately describes the common law governing military commissions, and that the jurisdictional limitations he identifies were incorporated in Article of War 15 and, later, Article 21 of the UCMJ. It also is undisputed that Hamdan’s commission lacks jurisdiction to try him unless the charge “properly set[s] forth, not only the details of the act charged, but the circumstances conferring jurisdiction.” Id., at 842 (emphasis in original). The question is whether the preconditions designed to ensure that a military necessity exists to justify the use of this extraordinary tribunal have been satisfied here.

The charge against Hamdan, described in detail in Part I, supra, alleges a conspiracy extending over a number of years, from 1996 to November 2001. All but two months of that more than 5-year-long period preceded the attacks of September 11, 2001, and the enactment of the AUMF—the Act of Congress on which the Government relies for exercise of its war powers and thus for its authority to convene military commissions. Neither the purported agreement with Osama bin Laden and others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to have committed violates the law of war.

These facts alone cast doubt on the legality of the charge and, hence, the commission; as Winthrop makes plain, the offense alleged must have been committed both in a theater of war and during, not before, the relevant conflict. But the deficiencies in the time and place allegations also underscore—indeed are symptomatic of—the most serious defect of this charge: The offense it alleges is not triable by law-of-war military commission. See Yamashita, 327 U. S., at 13 (“Neither congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge proffered against him is of a violation of the law of war”).

(Emphasis supplied.) Trying suspected terrorists in military commissions requires charging them with violations of the laws of war. If Lieberman is serious about his goal to abolish civilian trials for terrorists, he should be working on that issue, not looking to eviscerate the due process guarantees of the Constitution.

Speaking for me only

Full post as published by TalkLeft on May 05, 2010 (boomark / email).