FITUG e.V.
Förderverein Informationstechnik und Gesellschaft
FITUG e.V.Förderverein Informationstechnik und Gesellschaft |
|
------- 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
********************************************************************** For Listserv Instructions, see http://www.lawlists.net/cyberia Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot Need more help? Send mail to: Cyberia-L-Request@listserv.aol.com **********************************************************************
------- End of forwarded message -------