A FRONT-ROW VIEW OF JUSTICE FOR NEW YORK
THE VIRGINIAN PILOT 11.29.2009
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
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
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.