Quote:
Originally Posted by Shar
.... But that's just what it is - jurisdiction. A court must have jurisdiction to hear a case. In this instance how does the Southern District of NY have legal and proper jurisdiction over this person? Anyone? It's only because we say so, it isn't because it went through any proper channels of extradition. The judge must shut his eyes to it. In a military tribunal, that is not necessary for a war criminal in an act of war. There will be some nutty rewriting of rules for this guy to stand in this courtroom. This isn't my opinion, this is Federal Rules of Civil Procedure 101.
As to Sigaba's contention that these issues are not novel - I have to disagree and state that I do not believe that terrorists acting on foreign soils against third party countries without their own clear nationalities are the same as international shipping issues. Again, the closest we've come to exploring anything close to this is Nuremburg and Israel's trial of Eichmann where they played seriously fast and loose.
|
Some quick thoughts: Our UCMJ under Title 10 US code allows for jurisdiction over the person - regardless of the location. So if a military member in space smoked dope, a Courts-martial can try the case simply because of the person's status as subject to UCMJ.
The civilian US courts involve a different analysis. Is there jurisdiction (power) to hear the case? That is does the court exercise power over the crime charged? The second aspect is one of location (called venue). There are several courts with the same power to hear the case, but in what location. Some offenses transpire through the territory of several courts. Jurisdiction over the crime and the person with proper venue perfect the case and once the trial starts, jeopary attaches.
I offer the observation that members of AQ are not members of a nation's military but rather stateless w/ respect to Army in the conduct of their actions. I would have preferred they be classified as "illegal combatants" (as distinguished from a Levy en masse) and then as illegal combatants they can be charged with their misdeeds under the law of war. Pursuant to our treaty obligations and the law of war, the US military has jurisdiction and them and the procedures set out in Title 10 US Code suppl by the military commissions act, allow for the military to have jurisdiction over those acts committed in violation of the law of war.
"Legal combatants" (military fighting in uniform and obeying the law of war) and those who rise up are not tried, but rather held as PW (in some cases the status is retained personnel and others civilian internes) until hostilities cease. Remember those WWII moves and Hogans Heroes? Held for the duration but not punished for crimes.
When this administration decided to handle the "illegal combatants" as criminals, in order to try and hopefully punish, we come down to two issues - jurisdiction and venue. Under Title 18 US Code, does the US have jurisdiction, that is the power to try the offense? The fact that over 3,000 persons were unlawfully killed with malice aforthought and certain persons conspired to commit murder, the U.S. obviously has the jurisdiction to adjudge the case. Nations have the power to defend their nationals. Likewise, the acts took place within the geographic confines of the nation. As far as the venue (the appropriate location to try the case), crimes against the US may generally be tried in any District in which acts associated with that crime took place. The fact that several thousand persons died in the S Dist of New York would justify that as one of the possible venues. Others might be where the flight training took place, where the aircraft were hijacked, etc.
Our criminal courts generally do not look to how the jurisdiction over the person was acquired. Some may remember a DEA agent Enrique Camarena (RIP) and the Mexican physician that kept him alive for an extended period while they mob tortured Camarena. The doctor was forcibly abduced by contractors working for DEA and brought to the US. There are other cases - Noriega, the Max Factor heir, etc. Bottom line, the US courts have
yet to grant a defendant a get out of jail free card, just because the "Habeas Grabass" offended some people's notions of fairness.
So, the current rules (as I read them) without amendment allow for what is going on.
I would have preferred the case remain prosecuted under our Treaty obligations and through use of Military Commissions (Courts-martial) but the decision is a political one, the law (IMHO) allows for either. But we have a Const provision regarding double jeopardy and the US as a soverign gets but one bite at the apple. If this becomes a circus because it is in the civilian courts - the administration has itself to blame.... This is not submitted in jest, I am sure that should it go terribly worng, they will say "It's all Bush's fault".
v/r
phil
P.S. Richard, thank you for the thought provoking commentary. I find it most enjoyable!