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Unalienable Rights Foundation - A FRONT-ROW VIEW OF JUSTICE FOR NEW YORK
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 A FRONT-ROW VIEW OF JUSTICE FOR NEW YORK

UnAlienable Rights A FRONT-ROW VIEW OF JUSTICE FOR NEW YORK

OP-ED

THE VIRGINIAN PILOT 11.29.2009

 PAGE 11

A FRONT-ROW VIEW OF JUSTICE FOR NEW YORK

By DAVID ASHE

by permission of the Author

DURING THE recent Noríeaster blackout, my neighborís house was burglarized when he left for an hour to buy ice. As we chatted about it, we both agreed that the crime had an extra sting because for most of us, a storm means a chance to bond and come together as neighbors. For an infinitesimal few of us, itís a chance for money and crime. He mentioned that when he spoke with the police he asked, "If you catch the guys who did this, any chance I could get five minutes with them?"

Who wouldnít have that natural desire for a front-row view of justice? A victim-criminal stare-down in a courtroom is appropriate and classically American. My neighbor deserves it with his burglar. And our country, especially New Yorkers, deserve it as we try terrorists.

When I first heard that the Guantanamo trials may take place in New York, I was encouraged by two things: 1) The trials would actually move forward and 2) those accused of starting this war would be brought before the very people they first attacked. Whether in a federal court or in a relocated tribunal, this is the opportunity our military tribunal teams have needed for years.

No trial attorney hears the phrase "speedy trial" without breaking a sweat. From the moment a defendant is in custody, the speedy trial clock starts, and judges donít let it stop. It delivers a dose of reality to the defendants who try to grandstand, but more importantly, prosecutors use the loud ticking to demand the resources they need and to secure a place on priority lists with supporting agencies. At the end of the day, we have peace of mind about our courts because we know that even the worst defendant was given a fast, fair opportunity to defend before we locked the cell for good.

Generally, there is nothing inappropriate about military tribunals for wartime detainees. At the end of World War II, the Nuremberg trials were authorized by specific provisions in the instrument of surrender. Trials began within 90 days of V-J Day, and the top 22 Nazi criminals were convicted before Thanksgiving of 1946. The Tokyo trials were drafted separately from the document we signed on the USS Missouri, but more than 5,700 defendants were brought to trial in three years. The key was speedy trial. At Nuremberg, U.S. Supreme Court Justice Robert Jackson left the bench to lead the prosecution team, and on those trials he made the key imprint of American justice: Fair trials are expeditious trials.



Has the critical concept of speedy trial been perverted? Absolutely. In April 1942, Col. James Doolittle and his 16 B-25 crews faced their abyss: Take off from the USS Hornet 600 miles earlier than planned or scrub the mission. They flew. And among those captured, three were tried as war criminals. The Japanese quickly drafted the Enemy Airmenís Act. Our fliers were seated for a two-hour trial conducted in Japanese and they were executed the next day in a disgusting insult to anything resembling due process.

Compare that to the Quirin trials. In the summer of 1942, eight German saboteurs were landed by U-boats on our beaches in New York and Florida. The FBI captured these inept Nazis within six months. We established a special war tribunal, tried them and hanged six of them within two years. The key was speedy trial.

As for conducting the trials of Gitmo detainees in Manhattan, there are many reasons that only New York could be the site. The top three cretins who carried out the 1993 World Trade Center bombing, including Ramzi Yousef, nephew of Khalid Sheik Mohammed, met justice in federal district court in Manhattan. They came to our home to kill us. We caught them and brought them bowed and shackled before the very community they wanted to destroy. They didnít get to vote, they didnít get to buy a gun or participate in interstate commerce. They got a fair trial in a federal district court and life in a cage.

They killed six people and injured more than 1,000, but we did not describe them as war criminals. It would have been an insult to any warrior ethos to say that any of them were warriors plucked from a battlefield. They didnít fight for king and country, wear a uniform or operate a military unit. They operated as punks who had access to too much money and too many jihad speeches. In light of that, are military tribunals appropriate for Gitmo detainees such as Khalid Sheik Mohammed? If we can unstall the process, sure. But itís good that we have other trial options that weíve already tested on terrorists.

We canít treat terrorism like a police matter. Fortunately, we never have. We canít treat these detainees like typical criminals, and fortunately, we never have. Weíve harnessed our national intelligence assets and our entire military for the battlefield fight.

The fix is simple: Get the tribunals moving or employ the system we used to cage the 1993 terrorist ring. As for the concern that the terrorists will use the trial as a stage to spout their views, defendants are not given such run of a courtroom. But even if the entire world did get a good, long listen, detainees like Khalid Sheik Mohammed would realize that the world already knows all about their views. Thatís why they have failed.

~David Ashe, a Norfolk native, deployed for Operation Enduring Freedom in 2002 and served with infantry in Iraq during Operation Iraqi Freedom in 2003. He was an instructor for the Marine Corps on operational law, including Rules of Engagement and Geneva Conventions, and now practices law in Virginia Beach.

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