American Madness

Intelligent Criticism in the Service of a Better Nation




The Sane in Spain Relate to Our Pain

Posted by Joel Friedlander | 10 Comments

This comment appeared today in response to a New York Times Editorial on the subject of trying the terror suspects in civilian courts rather than before military tribunals.  What this fellow says is ever so pertinent to the situation facing the United States.  Moreover, Spain has been the subject of continual attacks, not just one as in the United States.  I believe that Desmond, whoever he might be, has a genuine understanding of what our future will be if we allow the crazies in America to dictate our response to terrorism.

24.
HIGHLIGHT (what’s this?)
Desmond
Madrid, Spain
April 15th, 2010
9:39 am
In Spain we have been dealing with terrorists for over thirty years. We try them in normal courts, condemn them in accordance with due process and lock up all the guilty ones. With more than 3000 deaths and thousands injured we unfortunately have the unwanted experience of knowing , living and dealing in a democratic manner with a constant terrorist threat Some horrific crimes were committed and on many occasions the very fabric of society was tested in the aftermath of the carnage and senselessness of innocent victims and the pain of their families. Yet society held itself together in order not to descend into the chaos and retribution that the terrorists were trying to provoke. To some extent more surprising in a relatively young democratic society emerging after some 40 years of the Franco dictatorship.Others would say that the reaction was born out of maturity after living under the shadow from the dark years of authoritarian rule , secret trials, detentions without trial, arbitrary justice etc.
I still fail to see why with all the laws and heavy weight hugely funded law enforcement agencies in the US you cannot come to terms in a democratic manner with the situation then as we have.
What you certainly cannot do is compromise on your own standards and principles as otherwise society is no better than those it is locking up ( some indeed may even be innocent ).Authoritarian states do not appear overnight normally, it is a gradual process chipping away at individual rights and freedoms and for that reason Spanish society does not want to go back there.
However, in the US as society has never been there the warning signals are being ignored.

Comments

10 Responses to “The Sane in Spain Relate to Our Pain”

  1. Eric
    April 16th, 2010 @

    Joel,

    I can’t work out why you’d highlight this comment.

    Desmond is comparing two different situations. He is referring to Spain’s legal activities against Basque separatists, who are Spanish citizens committing crimes on Spanish soil. As he writes in his comment, the dispensation of justice poses few problems. This is of little surprise given the sovereignty of Spanish laws in these situations. This is also how the U.S. has dealt with terror attacks on American soil in recent history. Ted Kaczynski, Timothy McVeigh, Terry Nichols, various members of the FALN, The Weathermen and other U.S. terrorists were all tried in U.S. civilian courts, and punished according to U.S. law. No one would argue these groups and individuals were denied due process. Bill Clinton awarded clemency to FALN terrorists under some vague promise that they play nice with others. This is as far away as a regime can be from brutal authoritarianism.

    The present situation referred to in the NY Times editorial is more complex, as it deals with non-U.S. citizens, captured on a foreign battlefield, held off U.S. soil. Do we extend to these individuals the full protections of the U.S. Constitution? Do we try them in military tribunals or civilian courts? Should these be held in a densely populated urban center, or on a highly fortified military instillation? I have no answers to these questions, but can appreciate the nuances. To my knowledge, the above mentioned distinctions do not have an equivalent in Spain’s recent legal fight against terrorists. True, our leaders have managed to make a mess of the present situation, but we can all agree U.S. citizens are not being denied due process.

    Desmond’s comment, while interesting, fails to address the present situation. I can understand where a Spanish commenter posting on a Web site would fail to see the differences of the two situations, but I can’t understand why a U.S. lawyer would find the comment applicable. Perhaps a link to the original editorial would answer these questions.

  2. Jason
    April 16th, 2010 @

    I’m mostly with Eric on this, especially in recognizing that the two situations are not comparable, and on rightly pointing out the trials of domestic terrorism in the US.

    Additionally I think the commenter is a bit hysterical in fearing that the US is heading down a dark path toward authoritarianism. It just takes a tiny bit of perspective and perhaps a slightly broader knowledge of history to realize how patently absurd it is that the US could be setting itself on that course. We’ve got a system of government that checks itself and when politicians in the past have made authoritarian-like moves they have either quickly been dispensed with or judged by history as dead wrong, with the injustice having been corrected without a great deal of suffering (I’m thinking of Joseph McCarthy and FDR’s Japanese internment camps, although there are other examples). Even for all the hyperventilating about Bush/Cheney creating a dictatorship and broadening the power of the executive turned out to be a lot of hot air because look…they left office at the end of their 2nd term. Now we have a new president.

    I digress.

    Like Eric, I don’t have easy answers to what should be done with foreign terrorists captured on foreign soil. There is no correct answer to this, I don’t think. What it comes down to is, how do you want the government to define the War on Terror. Whether or not you like the terminology (because a Republican president coined it), it is a de facto state of war. The terrorists are certainly aware of this. Why is it so hard for us to understand? The attacks on 9/11 were acts of war. Had those acts been committed by the military of an official government there would be absolutely no question about it, right? So what’s the difference if the army involved is not directly backed by any single nation’s government? This is like an absurd argument I’ve had with a guy I know who insists it can’t be a war because you can only go to war with other nations, and al Qaeda isn’t a country.

    This kind of thinking is a refusal to accept that the terms have changed. 9/11 fundamentally altered the game, or at least our government’s understanding of how to play it. If some people want to pretend like it’s 9/10/01 I simply don’t know how to respond to them.

    No, that doesn’t mean I think the Constitution gets thrown out because of 9/11. But I certainly don’t think foreign terrorists (who I consider prisoners of war) should be tried in a media circus court in downtown NY. But at the same time, I’m not going to freak out if they are. Again, this is about perspective and the terms used to define it. The way we decide to deal with these criminals says a great deal about the overall approach to the problem of international terrorism. Do we see it as a war to be settled with military might or as a problem with unruly citizens who should be arrested and tried?

    But I find the extreme views on both sides (military tribunals are an affront to justice as we know it; civilian trials will invite terrorist attacks on NY) to be nothing more than just that – extreme.

  3. Eric
    April 16th, 2010 @

    Jason,

    Good points. I think what your response illustrates is that we’re dealing with an unprecedented situation. Military tribunal, or civilian court, either way the case (or cases) will be appealed all the way to the Supreme Court. A decision on future cases will be decided there. The great thing is that this is exactly how the system is supposed to work. We find ourselves with a new legal issue on our hands. The executive branch exercises it power and makes a decision. If the executive branch oversteps, then it will be corrected by the judiciary.

    Which is why, considering the argument that our present decision making process is somehow leading to an authoritative regime, much like Jason, I think it is laughable. Generally when I enter into debate with people that want to point toward the loss of liberty in our present government, I remind them that two of the greatest presidents in history, Abraham Lincoln and FDR, led much more authoritarian regimes than the current administration of the previous one. It is also an insult to people that do live under the authoritarian despots. Venezuela, Libya, China, Iran, North Korea, those are authoritarian regimes, where people don’t enjoy the freedom to post idiotic comments on a newspaper Web site.

    Returning to the present situation, much like Jason, I don’t get have an opinion one way or the other as to military tribunal versus civilian court. My biggest objection to a trial in Lower Manhattan is that I happen to live there and would rather not deal with the extra checkpoints and traffic. Otherwise, I don’t care, because I don’t plan to renounce my U.S. citizenship and take up arms against the U.S. military on foreign soil.

  4. Jason
    April 17th, 2010 @

    The point about the actual authoritarian regimes in the world is one that has always bothered me about the hyperbole used in the US. It annoys me I forgot to mention it.

    The irony seems lost on people who call the President of the US a fascist or a dictator in public.

    But be careful about calling Hugo Chavez a dictator. Sean Penn feels very sorry for that poor man who has been unfairly branded a dictator in the non-fantasy world.

  5. Joel Friedlander
    April 17th, 2010 @

    Let see if I can create a more disagreeable atmosphere about this. Our constitution applies to anyone who is in this country, and this country includes any military bases in other countries. Those bases are United States Territory and they are subject to US Law. If someone is arrested in battle with the United States in a lawful war and they are captured, they are entitled to be arrested, asked their name, rank and serial number and then put in a prisoner of war camp. There is no right on the part of the arresting party to torture them or force them to reveal anything more than those three things.

    There is nothing nuanced about all this. If a foreigner enters the United States in civilian clothing with materials with which they intend to attack this country, when they are caught they may be executed as spies. Anyone fighting to defend his or her country, fighting in his or her country, is NEVER a spy, they are a PRISONER OF WAR. Anyone who thinks that these people are anything else doesn’t understand the Geneva Conventions, or which we are signatories, and has no understanding of the ethos of this country.

    Dick Chaney is a war criminal and if he decides to go overseas he can probably be arrested on sight. He has convicted himself with his own words many times over.

    The Spanish fellow in the comment above wrote, after “…dark years of authoritarian rule , secret trials, detentions without trial, arbitrary justice etc.” commenting upon the problems the US is having with trying people in civil courts, and that really caught my eye, because that is the direction we are heading in if we continue to treat prisoners of war like terrorists or like common criminals.

    We have never had any business in Iraq, and I have addressed myself about that, and anyone who lifts a hand against an occupying force in their country is certainly not a terrorist, and certainly isn’t a spy. We have no right to try anyone we catch in Iraq or for that matter Afghanistan for anything. In fact we don’t really have a right to put them in a prisoner of war camp because we never declared war against either of those countries.

    The point of the comment that appealed to me was that in a place where thousands more had been killed by Basque Separatists, and where people must live in fear of terror, they still use their court system as the only fair way to try these people. All the talk about military tribunals is just Republican fear mongering. We lost 3000 people in one day and none in this country since. We lost more people than that in one half day at Gettysburg, one day on Iwo Jima or one day on Okinawa!

    For eight years the Republican Big Brother kept Americans in their place with fears of more attacks, and now that they are gone the new administration is still fighting to keep us safe from people who aren’t any threat to us at all.

    In sum, our government is full of crap, both Republican and Democratic Administrations.

  6. Joel Friedlander
    April 17th, 2010 @

    Oh yes, just one more thing; if this is a war we are in, according to the history of our involvement in wars, if an enemy kills any of the people in the enemy country that is perfectly OK. Thus, when America firebombed Tokyo, and other Japanese cities, killing hundreds of thousands of innocent civilians that was OK. I didn’t see any war trials involving the pilots of those airplanes of the planners of the attacks. Also, we obliterated Hamburg in Germany for no really good reason, and killed hundreds of thousands of civilians. How about all the civilians we killed in Vietnam?

    What makes KSM a terrorist is that he attacked us and we didn’t attack him. We would have been tried as war criminals if we had lost WWII!

    In the law the concept is called UNCLEAN HANDS. We have unclean hands both in Iraq and Afghanistan; we shouldn’t be holding anyone in illegal detention and torturing them. The entire concept of Military Tribunals is anathema to American Law, and only psychotics like Dick Chaney would think otherwise. There is nothing nuanced about it, such behavior is just plain wrong. Of course, Dick Chaney is from Wyoming, where apparently if they catch a person they think is a horse or cattle thief they just hang them on the spot. There is no need to bother with law if you know you are right.

  7. Jason
    April 18th, 2010 @

    First, Joel, you’ve changed the focus of your post from Military Tribunals: Right or Wrong? to Military Tribunals and Torture: Right or Wrong?
    Torture was never mentioned in this thread before your second to last comment. It’s a bit unfair to bring it in now.

    Second, you’re still insisting on framing the terms of the debate as if it’s 9/10/01. Or as if “war” must be defined the same way it was 60 years ago. Imagine what the British soldiers who fought in the Revolution would think about the tactics of the Vietnam War, or even WWII to some extent. The British fought in blocks of soldiers advancing on a position. Vietnam was guerilla-style jungle warfare – a completely foreign concept in the 18th century (until our Minutemen got the job done!). However, they would still recognize two organized militaries being given orders by two national governments. Where’s the parallel to combating terrorism?

    Third, you seem to completely miss Eric’s point about the Spanish commenter. He noted that the Basque terrorists (Feh! Separatists, my foot!) are citizens of the country where they commit their crimes. There has been no need to classify them as extraordinarily different from criminals. The same has been true of domestic terrorists in the US (Eric cited Timothy McVeigh and Ted Kaczynski). The military tribunals are intended for guys who are running an organized military campaign (without uniforms and the tacit – and it’s important to keep THAT in mind – backing of a foreign government) against the western world.

    Fourth, I get very tired of the claim that we would have been war criminals if we’d lost WWII. Yeah, that’s true to the extent that the Third Reich would have expanded its sphere of influence and we may have been tried under their authoritarian rule. But this bizarre attempt to suggest that a war is only viewed as just when you come out the victor in the end? Are you trying to suggest that we invaded Nazi Germany unprovoked just as Al Qaeda attacked us on 9/11 unprovoked? Or is that we were unjustified in WWII? Or is it simply that anyone engaging in war is automatically a criminal and it’s only the losers who get punished?

    Because I think in the case of Nazi Germany and Imperial Japan there were pretty clear cases of right and wrong, the firebombings notwithstanding. Although as much as people regret that in retrospect, I think there was a certain value to completely demoralizing the entire population of Germany and Japan at the end of the war. As an occupying force trying to oust the authoritarian regime and rebuild for democracy, it’s immensely inconvenient when that country’s citizens are under the impression that you’re vulnerable and they can win. Resistance in Germany and Japan after WWII? Almost none. Resistance in Iraq after the initial invasion? Loads. Although you’ll notice it’s dwindling significantly these days. Correlation or causation? I sleep just fine at night knowing what we did to Germany. I’ve seen Nuernberg, which we completely firebombed. It’s a beautiful city now without a Nazi emblem in sight.

    But as for modern-day terrorists, I think it’s a fine debate to have to figure out how to treat them. I don’t see why they should be treated as common criminals under these circumstances, which is not to suggest (as you did) that I think their HUMAN rights should be suspended). But I don’t see why they get rights under our Constitution.

    As for one of your final comments, I simply don’t even know how to respond to people (and you’re certainly not alone) who believe that the terrorist threat is imaginary and nothing more than fear-mongering. Is 9/11 really so far removed? Did you feel the same on 9/12? What has changed in the interim? Unfortunately this is a kind of war that has no end. It will require a constant kind of policing, just as city police are constantly working at suppressing organized crime. But as long as there is policing to be done, there is a threat.

  8. Joel Friedlander
    April 18th, 2010 @

    On 9/12 I had no real opinion. At that time there were plenty of people who thought that the entire country was going to be under attack, and that NYC would be ground zero. Me, on the Saturday following the attacks, I, my oldest son, and his then lady friend went to a bat mitzvah in Manhattan. Many people didn’t attend that affair because they feared death. How did I feel about dying at that time?

    I had, it is true, lived the major part of my life by that time but let me go to a favorite historical character for my idea:

    CAESAR

    Cowards die many times before their deaths;
    The valiant never taste of death but once.
    Of all the wonders that I yet have heard.
    It seems to me most strange that men should fear;
    Seeing that death, a necessary end,
    Will come when it will come.”

    A couple of years after the event I almost came to blows with a fellow in my office who compared the attacks on 9/11 to the holocaust.
    3,000 people died that day, no more, and no more in this country since. The reason for that isn’t that we have tapped everyone’s phone, their email, and opened their mail. The reason is that the people who attacked us don’t have the where with all to do such a thing again. Moreover, they never in their wildest dreams thought that they would be so successful.

    Have we been so successful at warding of another attack? I think that if we have it has nothing to do with our actions in Iraq or Afghanistan.

    You want to know why I mention torture so much? The reason is that it is the reason why people are afraid to try these criminals in a court of law. The case against them was secured through repeated, horrible torture. there is no way that such evidence can ever be admitted in any court, except a kangaroo court of injustice. I am opposed to any military tribunals because if they accept such evidence than they make us no better than the courts in Nazi Germany, Communist China under Mao, or the Soviet Union under Stalin.

    There is nothing nuanced about this subject. Mentioning what Abraham Lincoln did during the Civil War is ridiculous. Half of the States in the United States were in insurrection; the survival of the country was at stake, and not just intellectually. Under the circumstances of insurrection it may be permissible, for a limited period, to restrict our liberties. As to FDR, we were at war on four or five fronts at the beginning of the War and we were LOSING. There was no way of knowing that we would win. In fact, if Hitler had had any faith in his scientists, he would have developed the Atomic Bomb before we did. Ask the survivors of D-Day if our victory was a sure thing. It is blasphemy to compare our situation with the situation during the Civil War and WWII.

    We didn’t hit the Japanese back decisively until the beginning of June, 1942 at the Battle of Midway, and that was just the beginning. As to defeating the Germans, if my Uncle Moe Leibermann was alive you could ask him how sure of victory we were when he fought with Patton’s Eight Army in The Battle of The Bulge between December, 1944 and June, 1945. there is no way to compare conditions then with conditions now.

    You probably noticed that I left out the bombs on Nagasaki and Hiroshima in my argument. Discussing the wrongs of the past does nothing to justify the wrongs of the present. Discussing what happened in WWII is a bottomless pit. As to the justification I keep hearing for torture, or foe trying people and allowing coerced evidence to be used as evidence in chief, once you convict one person with that kind of evidence your justice system is in the toilet.

    We don’t allow coerced evidence to be used at trial because; it isn’t reliable; it is secured against the basic philosophical underpinning of the American System of Justice; it offends our basic sense of right and wrong. If you are going to justify using such methods on prisoners, why not just take them out and shoot them after you get all the information that you want. After all, if you do that you will be really secure, knowing that there is no question that those people cannot ever come back to hurt America, whether they were guilty or innocent.

    The reason the last administration, and this administration even has a question about trying these cases before a civil tribunal is that they know that every bit of information against these defendants was secured by torture and is worthless as evidence.

    This is not like the case where someone is arrested on the highway and their car is found to be full of illegal weapons, narcotics. There it is certain that the defendant is guilty, but if the search was improperly done the case may fall despite their guilt. In all of these military cases there is no genuine proof that these people are guilty of anything that wasn’t secured without torture. That was how the Bush Administration operated and now the Obama Administration is left holding the bag.

  9. Eric
    April 19th, 2010 @

    Joel,

    I won’t address torture in this post. It is a straw man.

    My comment is in response to the following statement: “The Spanish fellow in the comment above wrote, after ‘…dark years of authoritarian rule , secret trials, detentions without trial, arbitrary justice etc.’ commenting upon the problems the US is having with trying people in civil courts, and that really caught my eye, because that is the direction we are heading in if we continue to treat prisoners of war like terrorists or like common criminals.”

    I’ve argued above that the U.S. is having no trouble trying people in civil courts. I submit as evidence the trial of Zacarias Moussaoui. In this case, we collected evidence on U.S. soil of a terrorist attack. You’ve argued that U.S. military bases are an extension of U.S. soil, and subject to U.S. laws, but I argue this is inaccurate. Below, in my long winded response, I lay out why. It flows with my argument regarding the public outcries against the creep of authoritarianism in the United States requires further explanation and will ultimately show that the current legal case before us is incredibly nuanced, unprecedented and being held in full view of the world, contrary to the assertion that we can parallel our experience to the “dark years of authoritarian rule , secret trials, detentions without trial, arbitrary justice etc.” in Spain.

    The fears of executive overreach are far from a recent phenomenon, nor do we have anything to fear. Previous presidents have used unusual circumstances to expand the scope of executive powers under the guise of the protection of the union. Thus, one could argue that as early as Washington raising a militia against the Whiskey Rebellion, we began sliding down the slippery slope toward a despotic authoritarian regime.

    After all, this is precisely what Madison warned against in Helvidius 4 that “war is in fact the true nurse of executive aggrandizement.” Madison continued, “In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.”

    It wasn’t just Madison, the rest of the Framers were worried of precisely the creep of authoritarianism that a wartime president would invoke through the United States. Thus, the separation of powers in Article 1 and Article 2 of the Constitution, granting war making power to Congress and executive power of the military to the President.

    If we read the power of the President through that lens, it is immaterial that we were entering Civil War, or had a territory attacked by the Japanese. The Framers did not author Article 2, and leave in a clause that said, “please throw all of this away in the event of extraordinary circumstances.” Rather, the Framers explicitly stated the President may make recommendations to Congress on matters which “he shall judge necessary and expedient.”

    And thus, the beautiful history of Supreme Court decisions that have developed to check the powers of the President. In Ex Parte Milligan, the Supreme Court ruled against the Lincoln administration’s suspension of habeas corpus, the imposition of martial law and the creation of military tribunals to try civilians. This was a huge repudiation of the Lincoln administration and a strong show of force by the Supreme Court.

    A similar repudiation is shown in Youngstown v. Sawyer, in which President Truman invoked the presence of a state of war (in Korea, in which no formal declaration by the U.S. Congress was ever made, similar to the present situation), to seize steel mills in the United States to ensure their continued operation in the face of a threatened strike. The Supreme Court again struck down the Presidential decree and ruled in favor of the steel mills.

    Which leads to Boumediene v. Bush. Once again, the Supreme Court has struck down a Presidential decree during a time of crisis and war, raising questions about the legality of the detention of all suspects held at the Guantanamo Bay military base, as well as the constitutionality of the system of military tribunals designed to try them.

    So this much we all agree on. Holding detainees at Guantanamo indefinitely is unconstitutional. Which begs the question, what do we do with them?

    I believe Ex Parte Milligan well illustrates the current conundrum facing the executive branch and how the beauty of the separation of powers will ultimately see the decision is made in accordance with U.S. law and precedent.

    The key to the current case, of military tribunal versus civilian court, hinges on how far we extend the protections of the U.S. Constitution. We are without precedent. Ex Parte Milligan answered the question for U.S. citizens, but does not address foreign citizens on foreign soil. A U.S. military base does not immediately extend U.S. Constitutional protections to all that happen across the checkpoint. U.S. military bases are instead ruled under U.S. military law. Why else would we have military tribunals? If it was all a simple extension of the U.S., then we’d have civil courts on bases.

    One reason, is the necessary separation of the military from civilian matters, the other is the problematic expansion of U.S. influence. One could argue that by affording Constitutional rights to detainees captured on a foreign battlefield, through the expansion of U.S. civil laws to military installations, the U.S. has by extension cast the largest net of imperialism the world has ever seen. We’d be annexing any battlefield our troops set foot upon. Welcome to the United States, Liberia, Bosnia-Herzegovina, Iraq, Afghanistan, Somalia, Panama, Grenada, Laos (oh wait, we can’t talk about that one), Vietnam, Japan, France, Germany, Italy, et al.

    Or we’d be extinguishing any human rights through battlefield annihilation. Why bother to capture enemy combatants, when you have to read them Miranda rights? Under such a circumstance, expect body counts to increase and detainees to decrease. We’d be back to the early days of the Vietnam war. Disgusting.

    It is incredibly nuanced. Which is why I think the Obama administration is being so deliberate. They do not want to be repudiated by the Supreme Court by extending Constitutional protections to non-U.S. citizen, enemy combatants. But at the same time, they do not want to run afoul of international precedents guaranteeing human rights to all. So for now, we’re holding the detainees until we decide the proper course of action. At such time, it will be appealed to the Supreme Court and either upheld or overturned.

    Call it what you will, but one cannot call it authoritarianism.

  10. Eric
    April 27th, 2010 @

    Apropos of this thread, I thought everyone would appreciate the e-mail that just arrived in my inbox. Some time back I had signed an online petition request any civilian trials of foreign terrorist to be held elsewhere. As I’ve stated above, I don’t care if they are tried in a military court of civilian one; I’d prefer the trial be held somewhere other than Lower Manhattan as I happen to live here, and would rather not deal with the extra traffic and security.

    That said, here is what Chuck Schumer has to say about the matter:

    Thank you for your letter regarding trying Khalid Sheik Mohammed in New York City. I share your concern about safety and the accompanying costs of holding such high profile cases in Manhattan.

    After consulting with Mayor Bloomberg and Police Chief Ray Kelly, and considering the extraordinarily high costs estimated for security surrounding the trials as well as the ongoing disruption to the lives of New Yorkers for the duration of the trial, I urged the Administration to find an alternative location to try the 9/11 conspirators. I am confident that there are numerous alternative locations where a trial can be held safely and more cost effectively and I will continue to urge the Attorney General to make sure these trials are held elsewhere.

    Again, thank you for writing me about this important issue. Please do not hesitate to contact me if I can be of further assistance on this, or any other issue.

    Sincerely,

    Charles E. Schumer
    United States Senator

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