Tribunals, citizens, and war

[James Maule]

My question was about the Walker fellow, who is a US citizen. Since my original posting the speculation in the media (based on what, I don't know) is that he would not be tried in a military tribunal, that he would probably be tried for aiding and abetting an enemy (not treason) in a US federal district court, and that he would get a life sentence. Apparently (I had not known this when I posted the original message), he left home at 16 to find himself and ended up with the Taliban. (I predict a TV movie....)




Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
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>>> ricenter at IGC.ORG 12/05/01 07:46PM >>>
Prof. Maule asked: "Would trying the person in a military tribunal for a
domestic crime (if that is what it is held to be, a questionable conclusion
I think, but assuming arguendo it is) violate the person's Constitutional
rights if the same safeguards aren't provided in the tribunal as !
would be provided in a domestic criminal trial?"


Consider the following provisions from the Fourth Geneva Convention:
"Protected persons shall not be arrested, prosecuted or convicted by the
Occupying Power for acts committed or for opinions expressed before the
occupation, or during a temporary interruption thereof, with the exception
of breaches of the laws and customs of war." art. 70; " . . . the Occupying
Power may hand over the accused to its properly constituted, non-political
military courts, on condition that the said courts sit in the occupied
country. art.66.

If bin Laden or his confederates are tried by military commission, they
could only be tried for war crimes and only in Afghanistan.  Whether he
could later be tried before a federal district court for other crimes -- I
just don't know.  I guess there would be double jeopardy issues involved.

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law