Tribunals, citizens, and war
Arthur D. Wolf
awolf at LLAMA.CNET.WNEC.EDU
Wed Dec 5 23:04:49 PST 2001
Mr. Walker now finds himself facing very serious criminal charges and
perhaps national disgrace. I suppose that is one way of finding yourself.
Of course, Walker would need to take the stand to make out a credible
defense of duress. Based on his public statements so far, if believed, he
seems to have chosen to covert to Islam and fight with the Taliban.
Perhaps fighting against his own country, though, was not part of the
original deal. That may bear on intent, as Eugene suggested. My wife
thinks he is a head case, so maybe that is a good defense as well.
Even if Walker is a prisoner of war, I have assumed, perhaps wrongly, that
the US could still try him in federal court for violating federal criminal
law. I would be astounded if he ended up in a military tribunal of some
sort. Indeed after all the recent controversy, I would be surprised if
anyone ended up before a US military tribunal.
More likely (perhaps not in Walker's case) is a trial before an
international tribunal, such as at Nuremberg or Tokyo, or as in The Hague
or Arusha, Tanzania. Since the President has stressed the international
nature of terrorism and that all states have an obligation to surpress it,
the logical next step is to try such terrorists before international
courts, civilian or military (preferably civilian). Indeed I would convene
such an international tribunal in Kabul or Kandahar (or some other city
that begins with "K").
Incidentally, is it possible that his words and actions have caused him to
lose his US citizenship? Or is there an absence of evidence of intentional
relinquishment (or whatever the test is)?
Western New England College
At 08:52 PM 12/5/2001 -0500, you wrote:
>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....)
>Professor of Law, Villanova University School of Law
>Villanova PA 19085
>maule at law.villanova.edu
>President, TaxJEM Inc (computer assisted tax law instruction)
>Publisher, JEMBook Publishing Co. (www.jembook.com)
>Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
>Maule Family Archivist & Genealogist (www.maulefamily.com)
>>>> 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
>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
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