Stare decisis

This entry really isn’t “for” or “against” anything.  Rather it’s to pose some deeper questions for you to consider.  These questions came to me after I had finished watching the movie “The Conspirator” which is based on the military trial of Mary Surratt.  For those who don’t know history (or at least don’t know American History that well), Mary Surratt was one of those found guilty of conspiring to kill President Abraham Lincoln, Vice President Andrew Johnson, and Secretary of State William Seward.  She was the first woman to be publicly executed in the US.  Her rights as a US citizen were violated.  She was not given a fair trial or a jury of her peers.  Instead, it was a military tribunal that would bring about her demise despite their being enough evidence for reasonable doubt.  But she was ruled an enemy combatant, and those in charge wanted to make sure people paid the price in the assassination of Lincoln.  Mostly, the only thing Mary Surratt was guilty of was that the conspirators (her son accused of being one as well… later found innocent in a civil trial by a jury of Northerners and Southerners) was that they convened at her boarding house.  Whether she actually knew what was being discussed is anyone’s guess.

That all happened in 1865.  Now let’s move up a year to 1866.  The Supreme Court ruled in Ex Parte Milligan [71 U.S. (4 Wall.) 2] that the application of military tribunals to citizens is unconstitutional when civilian courts are still operational.  (click here)    By this ruling, Mary Surratt should have had a civilian trial and not been subjected to a military tribunal at all.  So why is all of this relevant to anything?  Let’s flip up now to the 21st century and the War on Terror.  Since this began after the attacks on 9/11, we have arrest and imprisoned countless individuals that have been suspect in being tied to terrorist organizations (such as al Qaida).  I’m not going to place innocence or guilt on any of them as I do not know the circumstances of their arrests and whatnot; however, it is plausible that some were accused of terrorist activities by others (especially in Afghanistan where tribal allegiance is key).  Under the administration of President George W. Bush, these individuals were subject to trial in a military tribunal by reason that they were terrorists… enemy combatants.  Then-Senator Barack Obama campaigned against the use of military tribunals and suggested civilian courts; however, since becoming President, he has upheld the strategy used by President Bush.

So why military tribunals and not civilian court as per the 1866 ruling?  One could argue that because most of the terrorist are from other countries that the 1866 Supreme Court ruling doesn’t apply to them.  But what about those that have been arrested that are US citizens (yes, there have been some over the years)?  A military tribunal is a way to “railroad” the case since it plays by different rules than a civilian court would do.  One major thing comes into play when talking about civilian courts… a trial by a jury of peers and human fallibility.  I consider it one thing since they both go together.

A couple of years ago, I was selected to sit on a jury in a case involving attempted armed robbery.  The jury needed a unanimous verdict to send the defendant free or to convict him.  After hearing both sides of the case, we began to deliberate.  Remember that under US law (US Constitution… referenced in Amendments 5, 6 & 11), a defendant is innocent until proven guilty.  When we first took our vote in the jury room, some of us voted innocent and some of us voted guilty.  We began to discuss the evidence that was presented to us in the trial, and by the end, we were one vote short of convicting the man.  The one person who still thought that he was innocent held firm.  As a result, we were a hung jury and the trial had to go through again with a different jury.  Was he guilty or innocent?  To me, the evidence seemed to think that he was.  Does that mean he was?  Not at all.  Innocent people have been found guilty of crimes they haven’t done before and are let out of jail years after they were incarcerated.  In some cases, a person’s innocence is found out after they have been put to death by the state even.  The opposite has also happened where a guilty person has gone free for one reason or another.  This goes back to what I called “human infallibility” that I mentioned earlier.  Military tribunals have a different code of conduct than a civilian trial and no jury of peers.  Human infallibility still exists but only to the extent that those presiding over the tribunal have already made up their minds… and if the person is seen as “evil” enough, the entire proceeding could be weighted to find a guilty verdict… whether the person actually is or not.

So now a two-pronged question.  Should those accused of being terrorists (or links to terrorist organizations) from other countries be subject to the 1866 Supreme Court ruling?  And what about those that are US citizens?  Concerning the latter question, the answer would seem to be quite simple.  The ruling in 1866 would seem to apply that if they are US citizens (even if deemed an enemy combatant) that they are still to be guaranteed a trial in a civilian court.  The more complex answer comes to the former question.  When we, as civilians, travel to a foreign nation, we are subject to their laws and their justice system.  The same goes for any person that travels to the US from another nation.  And I do realize that there is a difference between speeding on a highway, murdering someone, and committing an act of terror.  This goes to a question that I raised in a couple of blog entries (here and here) … What constitutes an act of terror?  Going beyond a dictionary definition, there gets to be several muddled interpretations.  What can history teach us in this situation with this kind of question?  How far (if at all relevant) does the 1866 Supreme Court ruling go?  Where is it that we draw the line as a society?

I want to wish all of you a happy and safe new year.  We are already geared up for the 2012 elections and ready for things to begin in earnest. Make sure to check out those pages as they will be updated as things unfold.


9 Responses to Stare decisis

  1. Deborah Mraz says:

    James, as I was re-reading this a few things struck me that I’m not sure if I mentioned before for some reason I cannot read the comments section 😦 You wrote; “The Supreme Court ruled in Ex Parte Milligan [71 U.S. (4 Wall.) 2] that the application of military tribunals to citizens is unconstitutional when civilian courts are still operational. By this ruling, Mary Surratt should have had a civilian trial and not been subjected to a military tribunal at all.” I just wanted to point out, that Mary Surratt’s case would not have been different or even have been subject to the Milligan verdict because Surratt’s case was in 1865 and the Supreme Court hadn’t ruled on Milligan until 1866. We don’t get do-overs in Supreme Court decisions.

    On a personal note, I have given the question you posed a great deal of thought and I have come to the conclusion that there are times that in order to protect our personal freedoms that there are times that our government has to act to protect and do the greatest good for the greatest amount of people (read U.S. Citizens), this would be a classic example of Utilitarian ethics.

    Therefore, while we can easily sit back and cry ‘foul’ when someone is arrested as a suspected terrorist, we, as ordinary citizens fully expect our government to have their act together and protect us and our freedom. Simply put, our government is trying to protect the greatest number of people from harm (read terrorists). Sadly, that may mean on occasion, someone is arrested who is innocent and if that is the case, then they go free after they are cleared. And I do not believe that our government, or it’s representatives, take an arrest of a suspected terrorist lightly. I believe that the individuals have performed, been involved in, or have been known to be involved with organizations or individuals or themselves, individually, suspicious activities (read terrorist groups/activities/organizations/actions). If they hadn’t been involved in any way shape or form with any of the above, then they wouldn’t be suspicious and therefore, would not be detained. I believe our Department of Homeland Security has learned from history what constitutes ‘suspicious behavior.’

    We have to remain diligent as a country and I fully support whatever diligence it takes in order to make our country safe for it’s citizens. My point is, in order to enjoy the freedom and liberty that we, as Americans, have come to fully expect, it comes with a price…that price is our government doing what they need to do, whether we always agree or not, to protect those very freedoms that we, as American citizens enjoy for us and for our posterity!

    I also wanted to point out that Timothy McVeigh was an American Citizen and what he did in Oklahoma City, bombing the Murrah Federal Building, was act of terror, of the most despicable kind; domestic terrorism. So, in answer to your second question; U.S. Citizens who perform acts of terror on U.S. soil are guilty of treason and therefore, not afforded the rights that you and I have.

    I highly doubt that our Supreme Court in 1866 could have possibly conceived of the issues and dangers that we, the people of the United States, are facing in today’s world as it relates to terrorism, whether domestic or imported.

    • James S. says:

      Deb… I know there are no do-overs in Supreme Court decisions. The point with Mary Surratt that I was trying to make was that she should have had a civilian trial (something her lawyers tried to argue)… something that the Supreme Court ruled a year later.. Had it been in place, she would have. (and they did rule her a type of “terrorist” as all of DC went on lockdown the night of the assassination.)

      I’ve always said that in today’s time, we must always remain diligent citizens. There are those that are willing to harm us. But I still raise the question, what is a terrorist? If we just say that it’s someone willing to cause harm to the US and its people, then there are a lot of people on Wall Street who could be accused of economic terrorism for causing the recession.

      And I’ve looked up Timothy McVeigh… the US citizen who blew up the Murrah Federal Building in Oklahoma City. He was given a civilian trial in federal court and not a military tribunal though he was labeled a domestic terrorist (and was one). So why is he treated differently than the ones now?

      My last point is still a question. Yes, the government is still enshrined to protect us, and we expect them to. And, as earlier states, we must always be diligent. But where do we draw the line between protection and the rights guaranteed to us? We have given the government some leeway in this, but the answer to how far we will let them go has never been fully defined. You have raised some very good points, though… this issue is not as cut and dry as one might think it is.

    • James S. says:

      Ok… so one more point that came to mind. If we are going to allow military tribunals on suspected terrorists, then why is it that most are being held to this very day in Guantanamo Bay and not even being given that? Most of them have not even been allowed to make their case. They are just considered terrorists and held and for most, it’s the end of it. One guy several years ago, was allowed to prove his innocence. He had been accused by someone who just had a grudge on him. He was set free after being incarcerated for a number of years… and is more likely to be against us now because of it. We dug ourselves into a hole here with this.

  2. Deborah Mraz says:

    What Mary Surratt was accused of was exactly what you pointed out; an act of domestic terrorism. I believe involvement in a plot to assassinate the President of the United States certainly qualifies as an act of domestic terrorism, in 1865 or 2012. I do not blame all of D.C. for going on lockdown after Lincoln’s assassination, after 9/11 this entire country went on lockdown. We had to. Self-protection is paramount.

    I’m looking up more information regarding McVeigh and his trial and any pending decisions regarding trials of domestic terrorists. At this point, I’m going to guess that McVeigh set the bar for despicable behavior by a U.S. citizen (former U.S. citizen).

    About Guantanamo Bay…

    Since October of 2001, 775 detainees have been brought to the Guantanamo Bay Detention Facility, of these 775, most have returned to their homeland or have been transferred to other facilities. As of May 2011, 171 detainees remained.

    They remain for good reason.

    Some detainees have supplied terrorists with weapons, some have participated in terrorist plots, some know information regarding terrorist plots all against the United States. OUR country! Yes, those that are held are most assuredly allowed to present their case. Do I feel bad about one man who proved his innocence? In the grand scheme of things…that would be a resounding no. I do not know the specifics of this one person, but I would point out that he was given the chance to prove himself innocent the same as any other detainee at Gitmo. I would love to research this one case, but again, this ONE lone case most assuredly does not make it okay in my book to set free or to give rights to those who have been detained due to the fact that they are suspected of terrorism. This charge is not something that our U.S. Government takes lightly. People are not detained without damned good research and reason.

    What we must understand is that this is not a civil court proceeding reserved for U.S. citizens, who, as U.S. citizens have rights. Those U.S. citizens who commit acts of domestic terrorism have committed treason and therefore, their rights are stripped and negated. Foreign acts of terrorism (not U.S. citizens) have no rights to begin with. We must keep in mind, that what these individuals are suspected of (foreign or domestic) is certainly as far from ‘civil’ as one can get.

    I would urge you to visit the website of The United States Department of Defense if you would like biographies of those detained in Guantanamo Bay, what they are suspected/accused of.

    I do not believe we, as a country, have dug ourselves any holes. I believe that the United States is making a statement that reads, ‘don’t come on our soil, in our country in order to kill, maim, destroy or commit other acts of violence against our people, we will NOT tolerate it!’

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