[free-sklyarov] Crypto Terrorists to be Tried in Military Tribunal

Jei jei at cc.hut.fi
Thu Nov 15 01:14:39 PST 2001


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

It can also be someone who DeCSS's their filez.

---------- Forwarded message ----------
Date: Wed, 14 Nov 2001 23:43:51 -0400
From: John Noble <jnoble at DGSYS.COM>
Reply-To: Law & Policy of Computer Communications <CYBERIA-L at 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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