Wednesday, November 6, 2019

A Deep Dive Into Military Tribunals (Summary of Handbook By J. Jericho)


2) This is useful information. I can't verify anything about the author. 
3) More disclaimers.
Read on if you're just curious about military tribunals in the US.
4) I will condense/edit slightly for readability. 
5) Acronyms
* EO- Executive Order - the President issues those.
* FISA - Foreign Intelligence Surveillance Act
* GITMO - Guantanamo Bay Military Base ("Gitmo")
* POTUS - President of the United States of America
* SCOTUS - Supreme Court 
6) This is a book written by a non-lawyer for a non-expert audience (primarily journalists). 
7) This is 46 pages. I am going to try to boil it down. 
8) 5 kinds of law

* Civil
* Criminal
* Military
* Constitutional
* International 
9) In the Kavanaugh confirmation hearings, recall the exchange with Sen. Graham - the key part was the issue of Americans who collaborate with the enemy.

Justice Kavanaugh said that sometimes they're prosecuted under criminal law, and sometimes under military law. 
10) Graham drove home the point that enemy collaborators have been prosecuted in military court in the past, specifically Americans who worked with Nazis. 
11) The point of that exchange was obviously to send a message...you know. 
12) The Nuremberg Trials were military tribunals run by the Allies (UK, France, Canada, USA) as a joint military force.

(*Again please note I am simply abstracting from this document whose author is unverified by me. If you catch any errors please point them out.) 
13) Even though the tribunals were military, the framework for Nuremberg was international law, which includes the laws of war. 
14) The Constitution divides power up.

* President is Commander in Chief
* Congress defines/prosecutes offenses vs. international law
* They share the power to make treaties 
15) Case Study of Espionage - 1780 
16) * American Revolutionary War (1775–1783)
* (British) Major John André accused of espionage
* General George Washington ordered military commission
* Tried
* Convicted
* Executed
* Hung 
17) Case Study of Treason (1865) - this one is important because it establishes the precedent for civilians being tried in a military court. 
18) Curran, J. (1933), ‘Lincoln conspiracy trial and military jurisdiction over civilians’, Notre Dame Law Review, 9(1), pp. 26–49

scholarship.law.nd.edu/cgi/viewconten… 
18) * Civilians Benjamin Harris, Lambdin Milligan, Clement Vallandigham - tried and convicted; Harris expelled from Congress

* Civilians David Herold, Mary Surratt, Lewis Powell and George Atzerodt executed 
20) *Correcting the numbering 
21) Ex Parte ("on behalf of") [Richard] Quirin (1942) established that civilian enemy combatants against the STATE can be tried by a military court.

This group included non-American and American citizens in WWII.

en.wikipedia.org/wiki/Ex_parte_…
22) Let's say you're an American citizen, and you collaborate with enemies of America.

Justice Kavanaugh clarified in his exchange with Sen. Graham during his questioning that you can be tried by a military tribunal.

23) The Gitmo courtroom is a dedicated space for military tribunals (known as military commissions) to operate during wartime.

America is in a state of war. Multiple wars.

en.wikipedia.org/wiki/Guantanam…
24) "Each military commission consists of a military judge and at least five “members” (similar to civilian jurors). In a case in which the accused may be sentenced to death, a minimum of 12 members and unanimous agreement are required."

mc.mil/ABOUTUS.aspx 
25) The presumption of innocence applies.

The standard of guilt is "beyond a reasonable doubt." 
26) Rules of evidence differ - they focus on SUBSTANCE not PROCESS.

"the rules of evidence for military commissions focus on whether the evidence is reliable and probative, and if its admission is in the best interests of justice." 
27) Example 1: Let's say you didn't have a search warrant outside the USA - it's OK.

"evidence seized outside the United States may not be excluded on the grounds it was not obtained pursuant to a search warrant." 
28) Example 2: Let's say the accused didn't get read his rights - it's OK.

"Statements of an accused are not excludable merely because the accused was not read a Miranda warning." 
29) A guilty verdict can be appealed -

1st -- to the U.S. Court of Appeals - DC Circuit.

and then

2nd -- to the Supreme Court. 
30) Sources of military law.

* Official - the Constitution; EO; judicial case law; UCMJ; military guidelines.

* Unofficial - Operational Law Handbook (2018)
loc.gov/rr/frd/Militar…
31) The author provides some discussion of free speech issues which you can read at your convenience. I'm skipping ahead to jurisdiction. 
32) The author brings up the fact that defense lawyers will typically challenge whether a military tribunal is the appropriate setting for their client. 
33) He clarifies that we are at war since 9/11 (per Graham/Kavanaugh 2018, but you can find this information online readily.) 
34) He clarifies that military tribunals are appropriate re: crimes used to raise $ for war against our Nation. 
35) He clarifies that the types of crimes used to raise $ for war against us include:

* Human trafficking/Child trafficking/Child sex slavery
* Child murders/infanticide
* Charity fraud
* Money laundering
* Genocide/mass murder
* Racketeering" 
36) It is important to make this point - that a financial crime is a war crime if the proceeds are used to make war against the United States. 
36) The author quotes Robert David Steele re: treason.

"Technically, it is legal right now for military tribunals to take anybody who is considered an agent of a foreign power and try them under a military tribunal rather than in a US court of law."
37) "Treason against the United States of America is a Federal offence, per the following statute: 18 U.S. Code Chapter 115 - Treason, Sedition, and Subversive Activities, From Title 18 – Crimes and Criminal Procedure (United States House of Representatives, 2019)." 
38) The author clarifies that he is not qualified to opine about whether an American citizen accused of treason should be tried in a military tribunal -- again, he is not a lawyer. (This is just in case a defense lawyer argues otherwise.) 
39) Espionage 
40) Uniform Code of Military Justice, Section 906a, article 106a, "Espionage," states: 
41) (A) (1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit," 
42) "to any entity described in paragraph (2), either directly or indirectly, any thing described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns" 
43) "(A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack,

(B) war plans,

(C) communications intelligence or cryptographic information, or" 
44) "(D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct"

citing
au.af.mil/au/awc/awcgate… 
45) Again, a defense lawyer "may challenge the jurisdiction of Military Tribunals to try American citizens for espionage who are not former or current serving defense force members" 
46) However

"Numerous public discourses claim that non-military personnel who hold or held high-level security clearances are subject to Military Law for serious crimes against the security of the USA such as espionage (e.g. Herbig, 2017)." 
47) citation

Herbig, K. (2017), The expanding spectrum of espionage by Americans, 1947–2015

dhra.mil/Portals/52/Doc… 
48) This may include former and serving personnel from portfolios such as:

"the Attorney General,

National Security,

Defense,

Secretary of State and

the White House." 
49) I am not going to cite here opinions either way from biased journalists. 
50) the author states: "Independent journalists should consider reporting corruption and contradiction among all media outlets." 
51) There is MUCH more in this document that is worth reading, particularly the guidance on critical thinking and ethical reporting. 
52) For what it's worth, it sounds to me like Mr. Jericho is authentic - simply an educated and concerned person.

I learned a TON from doing this and appreciate his efforts.

(End.) 
___________
By Dr. Dannielle Blumenthal. All opinions are the author's own. Public domain.