Chicken Little and Hamdan

Justin at RightontheRight.com isn’t thinking straight — again. He’s crying that the sky is falling in the wake of yesterday’s decision by the US Supreme Court in the Hamdan case. Apparently he is laboring under the delusion that the only options left are to release all suspected terrorists, or try them in civilian courts:

Do we release dangerous terrorists back into the world, or do we spend years upon years trying every single one of them in a civilian court… Congress is going to have to do something, as we simply can’t begin trying hundreds of foreign enemies in our domestic courts. I wonder if our soldiers in Iraq may now have to shoot instead of detain terrorists, just so they don’t have to make countless court appearances. Can you believe this idiocy?

Caveat: I have yet to read all 185 pages of the Hamdan decision [PDF], but I would certainly be surprised to find that the Supreme Court mandated the use of civilian courts in trying terror suspects. The Paper Chase blog points out that the Court, in fact, discusses the use of courts-martial in such cases:

The statute allows military commission procedures to differ from standard criminal procedure or military court-martial rules when necessary, but the Court ruled that although the President has determined that it is impracticable to apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts,” he has not “made a similar official determination that it is impracticable to apply the rules for courts-martial.” The Court also said:

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism.52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U. S. C. A. §839(c) (Supp. 2006). Whether or not that departure technically is “contrary to or inconsistent with” the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as “practicable.”

Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).

 

So, where in all this is it mandated that we either release terror suspects, or try them in civilian courts? Justin’s argument is a glaring example of the false dilemma fallacy, wherein it is erroneously assumed that there are only two alternatives to choose from. That’s not the case here. We are not limited to letting terrorist suspects go free, or trying them in civilian courts. We have a perfectly serviceable means of bringing such individuals to trial, in the form of the military court-martial.

Neal Katyal, who argued Hamdan for the plaintiff, wrote nearly two years ago:

Here’s what a courts-martial system would look like: It would be governed by the landmark 1951 Uniform Code of Military Justice — a congressional enactment that revolutionized the procedures, offenses, and punishments available in the military system. Offenses would be defined by Congress, and Congress has already explicitly said that courts martial have jurisdiction to try violations of the laws of war — precisely the offenses that the administration wants to try in these commissions. It would use existing military judges who have experience in dealing with complicated questions of guilt and innocence. Judges would not be hand-picked by the civilians at the Pentagon, but chosen randomly. The members of the court martial who would decide the facts would similarly not be selected by Pentagon civilians, but could be chosen from the standing court-martial convening orders — orders that function like the civilian jury pools we all know and love. The procedures and regulations for the trial would be known in advance. The decision would be subject to review by a specialized court of military justice — composed of judges named by the president and confirmed by the Senate…

Our nation… should admit it made a mistake and return to using our powerful and fair system of courts martial — a system that would generate swifter convictions of terrorists. As our nation’s great Chief Justice John Marshall put it in 1803, ours is a “government of laws, and not of men.”

It is hard to avoid the conclusion that the Bush administration, and supporters like Justin, favor the use of extralegal “commissions” because they want swift, merciless PUNISHMENT — without spending the time and effort that might be needed to mete out actual justice.

President Bush has said that "We’re a nation of laws, and we want to uphold those laws". If this is indeed so, then let us use the laws we have to seek justice. Abandoning our system of justice for extralegal kangaroo courts makes us less than we could be, and is a betrayal of the principles this nation has been built upon.

UPDATE 07/01/06 18:17 PM Oh, look… Jay at StopTheACLU.com is trying to pass off the same fallacy as ‘common sense’:

It would only cause a burden and an unneeded spectacle to try these terror suspects in American courts. Our courts are not built to deal with these kinds of trials.

What’s wrong with courts-martial for the terrorist suspects, Jay? Or hadn’t you even bothered to think about this long enough for that idea to occur to you?