(CNN)Donald Trump has come under fire for recommending US citizens accused of terrorism be prosecuted before military tribunals. But despite the criticism, Trump"s concerns are not only merited -- they are, in fact, within the bounds of the law.
In November of 2010, Ahmed Ghailani, an al Qaeda terrorist who bombed U.S. embassies in Kenya and Tanzania, killing 224 people, received a "near-total acquittal," in the words of former Justice Department official John Yoo. Ghailani, in this case a non-citizen, was convicted of just one count of conspiracy, receiving an acquittal on 284 of 285 charges.
The odd verdict was in large part due to the exclusion of key evidence, like the testimony of a witness who sold Ghailani 1,000 pounds of TNT, a chemical compound used in explosives, but whose identity was learned through enhanced interrogation techniques and therefore excluded. This evidence might have been admissible in a military tribunal with less stringent evidentiary standards.
Some skeptics might point to Ex Parte Milligan, a civil war era case where the Supreme Court decided that military courts did not have jurisdiction over US citizens if civilian courts were open. Though this may seem damning to Trump"s proposal, Ex Parte Quirin, a 1942 case dealing with Roosevelt"s trial of the German saboteurs, suggests otherwise. In Quirin, the court found that two US citizens could be tried before a military tribunal because they were "in violation of the law of war."
The court distinguished this case from Milligan by noting that Milligan involved a citizen in Union territory who was conspiring to aid the Confederate forces but had not yet done so, and thus was not associated with the enemy. By contrast, the two citizens in Quirin, "associate[d] themselves with the military arm of an enemy government, and with its aid, guidance, and direction enter[ed] this country bent on hostile acts." Hence, they were "enemy belligerents within the meaning of the Hague Convention and the law of war."
With this precedent in mind, it seems that a US citizen accused of terrorism, such as Anwar al-Awlaki, would be a prime candidate for a military tribunal much like the two Quirin saboteurs. Al-Awlaki, a U.S. imam who joined Al Qaeda and advised recruits on how to build explosives, was killed by a drone strike in Yemen in 2011.
And while all U.S. citizens merit due process as required by the 5th and 14th Amendments and the various other constitutional guarantees for criminal procedure, there is at least some precedent for military tribunal applications to US citizens.
In an age when our heinous enemies are intent on violating the laws of war, it is admirable to see a US presidential candidate -- namely Donald Trump -- rethinking our so-far failed response.
Read more: http://www.cnn.com/2016/08/16/opinions/trump-military-tribunals-american-citizens-mcenany/index.html
No comments:
Post a Comment