[FYI] (Fwd) Crypto Terrorists to be Tried in Military Tribunal

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Thu, 15 Nov 2001 11:05:04 +0200 (EET)
From:           	Jei <jei@cc.hut.fi>
To:             	ukcrypto@chiark.greenend.org.uk
Copies to:      	eurorights@eurorights.org, cypherpunks@toad.com
Subject:        	Crypto Terrorists to be Tried in Military Tribunal
Send reply to:  	ukcrypto@chiark.greenend.org.uk

I thought this would be relevant to the list members.

http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html

http://cryptome.org/pmo111301.htm

http://www.newsmax.com/archives/articles/2001/11/13/193921.shtml

And what is a Crypto Terrorist, you ask? Of course, 
it is someone who hides things with cryptography, 
e.g. a potential Cyber Terrorist. ;-P

---------- Forwarded message ----------
Date: Wed, 14 Nov 2001 23:43:51 -0400
From: John Noble <jnoble@DGSYS.COM>
Reply-To: Law & Policy of Computer Communications
<CYBERIA-L@LISTSERV.AOL.COM> To: CYBERIA-L@LISTSERV.AOL.COM Subject:
Re: FC: President Bush says military tribunals will try civilian      
           cases (fwd)

At 9:07 PM -0500 11/14/01, Andrew C. Greenberg wrote:
>I saw the part in article III about one supreme court and subsidiary
>courts.  Sorry, where, exactly, does it say that military tribunals
>have jurisdiction over civilians?
>

Article III extends the judicial power to cases arising under the
Constitution, laws of the United States, etc. Article I authorizes
Congress to define and punish offenses against the law of nations,
something apparently apart from the laws of the United States. The
real issue is not an Article III tribunal vs an Article I tribunal,
but whether you get the little niceties like a public trial, a jury,
and a lawyer. In other words, it's not about whether the military
tribunal has jurisdiction, but whether the "defendant" has
constitutional rights in either forum.

Wong Wing v. U.S., 163 US 228 (1896) holds that resident aliens are
entitled to the protection of the 5th and 6th Amendment (due process,
jury trial) if they are to be charged and imprisoned instead of
deported. U.S. v. Verdugo-Urquidez, 494 US 1092 (1990) distinguishes
Wong Wing in holding the 4th Amendment does not apply to searches
outside of the United States where the alien has "no significant
voluntary connection" to the U.S. In that case the defendant was
grabbed and his house searched in Mexico before he was whisked into
the U.S. for trial, where his 4th Amendment claims were rejected
because the Bill of Rights doesn't protect non-resident aliens. It is
likely that the rationale of Verdugo-Urquidez supports the
constitutionality of the executive order as applied to alleged
terrorists captured in Afghanistan, and either tried there or like
Verdugo-Rodriguez brought here involuntarily. Non-resident aliens are
simply unprotected by the Bill of Rights.

With respect to those captured in the U.S., Ex parte Quirin, 317 U.S.
1 (1942) indicates that "unlawful belligerents" accused of violations
of the "laws of war" are not entitled to jury trials because
violations of the laws of war were not among the crimes triable by
jury at common law (like claims in equity). The problem is the
uncertain scope of the terms "laws of war" and "unlawful belligerents"
-- Quirin seems to be define each only by reference to the other, and
the terms seem even less exact today than they did in 1942. Quirin
characterizes as unlawful belligerents (in contrast with lawful
belligerents who must be treated as POWs) those "secretly passing
through the defenses of the United States in civilian dress, for
purpose of committing hostile acts." In the context of the current
"war on terrorism," the terrorists found in the U.S. likely qualify as
unlawful belligerents if they are here to commit "hostile acts." It
seems to me that "hostile acts" might include money laundering, drug
smuggling, even credit card fraud. It's not even clear that the
"hostile acts" have to be otherwise criminal acts, but it is clear
from Quirin that ordinary crimes, like conspiracy to blow up a
building, can be re-cast as violations of the law of war when
perpetrated by "unlawful belligerents." Moreover, Quirin indicates
that even U.S. citizenship does not entitle an unlawful belligerent to
a jury trial. Quirin claimed to have been a citizen since he was 4
years old, an issue that the Court found unnecessary to address.

The problem with this is that in Quirin the court looked to a real
honest-to-god declaration of war as the source of the President's
authority to send the German spies to a military tribunal. This time,
we're looking at a joint resolution authorizing the President to use
necessary and appropriate force to end terrorism, which is undefined.
The foreign belligerent is not a foreign nation, but a network that is
not altogether foreign. It raises a question as to whether there is a
distinction between a war on terrorism, and, for example, a war on
drug trafficking; or whether terrorism might be defined to include
drug trafficking, or almost any other anti-social behavior that we
want to deal with free of all the nasty complications caused by
lawyers and juries. How hard would it be to define people who blow up
abortion clinics, or set free lab animals, or write computer viruses,
or (you'll like this, Andrew) distribute DeCSS, as among the enemies
in the war against terrorism.

John Noble


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