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

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.

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  • Display: Sort:
    Logic and Truth Not Needed (5.00 / 1) (#3)
    by squeaky on Wed May 05, 2010 at 10:59:57 AM EST
    Because his only interest is to be a walking, talking, Depends® advertisement, for the bedwetter voters he has cultivated and come to rely on.

    Whether or not there is logic, or any bearing to reality is irrelevant.

    I think I have a small pile of rocks (5.00 / 2) (#4)
    by Anne on Wed May 05, 2010 at 11:42:05 AM EST
    in the wheelbarrow at home that are smarter than Joe Lieberman; with some decent funding (the Geological Society?), and after I ship them to Connecticut to establish residency, they could run for the Senate and, if they win, immediately raise the average IQ of the Connecticut delegation.

    Every time this man opens his mouth, so much stupid falls out of it that he ought to come with his own orange perimeter cones and a sign around his neck that says, "DANGER: Wearer may vomit large quantities of stupid without warning!"

    How long before the usual suspects - Glenn Beck?  Rush Limbaugh? - start salivating over the possibility that numerous groups and organizations with generally liberal orientation could be deemed terrorist organizations?  Oh my gosh, Joseph McCarthy would be so proud...

    I hope someone who is marginally smarter will pull Lieberman back from the brink, and that when he says he is "planning to introduce legislation," we can, with some confidence, translate that to "Waaah...won't someone pay attention to MEEEEEEEEE?"

    And go back to ignoring him.


    I think you misunderstand the point for Joe (none / 0) (#1)
    by me only on Wed May 05, 2010 at 10:52:38 AM EST
    Joe didn't get to spend alot of time in the spotlight in the final health care bill.  I don't think his proposal is entirely serious.  Joe just needs to get his TV time.  He needs to be back in the spotlight.

    At a different time in a different place we agreed that Joe ran as an independent because he really only represents himself anyway.

    He just wants to strip (none / 0) (#2)
    by lilburro on Wed May 05, 2010 at 10:59:34 AM EST
    Cheney of his citizenship, I am guessing.  He violated the laws of war no?

    But yeah I don't really get what Joe is getting at here.  And what it even remotely has to do with stopping terrorism.

    Is Times Sq. considered to be in the "theater (none / 0) (#5)
    by oculus on Wed May 05, 2010 at 11:52:15 AM EST
    of war" pursuant to Hamdan?  How about Pakistan?

    Therein lies Lieberman's problem (none / 0) (#6)
    by Big Tent Democrat on Wed May 05, 2010 at 11:59:15 AM EST
    Why is Senator Lieberman (none / 0) (#7)
    by KeysDan on Wed May 05, 2010 at 12:00:47 PM EST
    still (ever) chair of the Homeland Security and Governmental Affairs Committee. Do Democrats still need his post-Scott Brown critical vote?

    It is so hard to take him seriously ... (none / 0) (#8)
    by Maryb2004 on Wed May 05, 2010 at 12:08:21 PM EST
    but let me see if I have this straight:  he needs a Congressional Act that deems us in a state of perpetual war in which the entire globe is the theater of war (this is assuming the AUMF doesn't cover Times Square).  And then he needs the international common law of war to be changed so that a formal charge of a terrorist act is automatically deemed a violation of the law of war?  Or would changing the UCMJ be enough?

    Changing the UCMJ is not enough (none / 0) (#9)
    by Big Tent Democrat on Wed May 05, 2010 at 12:12:42 PM EST
    according to Hamdan.

    Part V (where this is) (none / 0) (#11)
    by Maryb2004 on Wed May 05, 2010 at 12:23:09 PM EST
    was only Stevens, Souter, Ginsberg and Breyer.  I don't remember why Kennedy didn't join on that section.  I don't have time to re-read Hamdan today. :)

    Kennedy wrote (none / 0) (#12)
    by Big Tent Democrat on Wed May 05, 2010 at 12:40:10 PM EST
    "Assuming the President has authority to establish a special military commission to try Hamdan, the commission must satisfy Common Article 3's requirement of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U. S. T., at 3318. The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the "law of war" in §821. The Court correctly concludes that the military commission here does not comply with this provision."

    The idea that the US can unilaterally redefine the Laws of War is not compelling.


    No. It isn't compelling. (none / 0) (#13)
    by Maryb2004 on Wed May 05, 2010 at 12:42:02 PM EST
    But it is popular.  

    Obama's senate mentor (none / 0) (#10)
    by Dadler on Wed May 05, 2010 at 12:20:00 PM EST
    Let's not forget, this is the guy Obama WANTED to learn from and REQUESTED as his mentor.

    What do you think the chances are that the Prez now comes out and rips Joe a new one?


    A foolish consistency... (none / 0) (#14)
    by diogenes on Wed May 05, 2010 at 06:09:42 PM EST
    If you were starting from scratch, why exactly would you not try alleged terrorists in front of military tribunals?  The reasons I see are "We've never done it" or putative "sixth amendment rights" which don't exactly address the matter on its merits.