The Constitution's input on military tribunals

The last word on whether KSM should be tried in a military tribunal or in civil court is the Fifth Amendment to the Constitution of the United States. The text follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger....

It appears, according to the above text, a military tribunal cannot be utilized to indict and/or try a person who is NOT in "the land or naval forces, or in the Militia...." If we broaden the meaning of the passage to include attacks ON the military, the attacks of September 11, 2001, still do not fit into that broader definition. However, it appears the exclusion of the armed forces was, instead, to ensure that the military controlled disciplinary actions against soldiers, rather than to give the military trial power over civilians.

Many of the "conservative" talk-show hosts tell of their fear of terrorists being released because they were not properly "Mirandized." If that happens, isn't it an indictment of the acts of government officials - not our justice system? Those officials "played fast and loose" with the rules. That does not mean that our justice system is broken. It means that government officials screwed up. So should we use a military tribunal every time officials spit on the constitution?

It will be interesting to see whether KSM pleads guilty in court as he has stated he will. If he does so, our justice system will live on; if he does not, the government may have difficulty getting much of the evidence admitted, and may have a hard time convicting KSM of his crimes....

Either way, if KSM is tried in a civil court, our justice system will live on. What will be remarkable is whether our government learns a lesson on treatment of prisoners in the process.

Sadly, the attorney general seems to be convening a "kangaroo court," since he has stated that the government will not release KSM no matter the verdict.

An aside: Comment to Sean Hannity regarding KSM

Here is a comment I placed today on Sean Hannity's website:

I am [an] avowed ULTRA-conservative. And it's on THAT basis that I say you are COMPLETELY wrong on the KSM issue. You constantly accuse Democrats of not reading the constitution, but on this issue, I HOPE you have not because otherwise it means you have purposely ignored what is written in the document.

Over and over you have stated that KSM should not have the same rights as "citizens." I wonder where you get the idea that the Bill of Rights only applies to citizens.

If I am a citizen of France, visit the United States, and steal someone's wallet, am I not afforded the same protections as a citizen? I hope you would say I am.

Just in case you ARE ignorant of the wording of the Fourth, Fifth, and Sixth Amendments, here are the relevant portions (emphasis mine): "The right of the PEOPLE to be secure...."; "No PERSON shall be held to answer for a capital, or otherwise infamous crime...."; "In all criminal prosecutions, the ACCUSED shall enjoy the right to a speedy and public trial...."

NOWHERE in the Bill of Rights is CITIZENSHIP a requirement to be protected by the constitution. The men who wrote the document knew there were MANY non-citizens in the country, and if the framers meant to exclude them, the word "citizen" could have easily been used. So PLEASE STOP using the phrase "the same rights as citizens." It is misleading and JUST PLAIN WRONG.

If you want to support military tribunals for the terrorists, find another way besides mistreating the constitution.

Sadly, no one particular political party has a monopoly on misleading the public.

An aside: Government debt

This is my first "Aside." This portion of the blog will be short observations and/or predictions that may not have a large amount of hard evidence, but that I believe will be important in the future.

I just heard a quote from Barack Obama's recent interview with Fox News. (Yes, I said Fox News.) His statement was: If the government keeps going further in debt, people in the US might lose faith in the government, and we might have a double-dip recession.... We haven't lost faith in the government yet? Look at the debt clock! Does it cause you to have more faith in the government? The site is not run or supported by a political organization. Notice how much more quickly the "US Spending Calendar Year to Date" figure is increasing compared to "US Federal Tax Revenue," (resulting in the "US Budget Deficit" number). Have you lost faith yet?!

How do we fix healthcare?

Some Democrats are today attempting to pass legislation providing government-sponsored health care. Speaker of the House Nancy Pelosi and others have even gone as far as saying Americans have a "right" to health care and that the national government has a responsibility to provide health care to those who cannot afford it.

Interestingly, the health care and insurance system has developed into its present condition largely as a result of previous congressional decisions not to consider health care a commercial activity. Those decisions have left states to develop regulations for health care and insurance within their borders.

Today, after more than two centuries of relatively little federal regulation, Democrats say that Congress now has an important responsibility to provide health care for "every American."

Democrats argue that the present condition of the health care system indicates that we cannot trust the system to develop efficiently; therefore Congress must regulate and support it.

The problem with this argument is that it takes two steps at once. The system is currently state-regulated and primarily supported by non-governmental sources. The Speaker of the House would change the system to be Congress-regulated and primarily supported by governmental sources.

Those who desire government-provided health care assume it is commerce and therefore properly regulated by Congress, but they would skip the intermediate step of private support regulated by Congress. Nearly every other commercial activity has thrived under this capitalistic structure. Congress should attempt to regulate one private system before it attempts to take over and coordinate fifty different systems.

Gitmo

This is my first blog post. I hope at least some find it informative and/or thought-provoking.

I am a "conservative" and a libertarian. Can you guess from those identifications how I believe the Gitmo detainees should be tried? I think many would guess incorrectly.

The ONLY way for Khalid Shaikh Mohammed to be tried is in a civilian trial. The rationality behind military tribunals is suspect at best. Here are a few reasons:

1. From everywhere on the political spectrum we hear about the ways in which the constitution protects the citizens of the US from the government. But where do we get the idea that the constitution only protects citizens? The Bill of Rights does not mention citizenship as a requirement to be protected. The fifth and sixth amendments apply not only to citizens, but to every person accused of a crime in the United States.

2. Military tribunals are best convened for POWs from the military of a recognized belligerent country. In this way our government can deal with those governments from a stronger position during peace talks and other negotiations.

3. If for no other reason: A terrorist is more likely to receive a death sentence in a criminal jury trial in New York City than in a military trial, in my opinion.