A Conflict Between Justice and the U.S. Constitution - by Mark E. Smith

Human Rights First is asking candidates to support civilian trials rather than military

tribunals for suspected terrorists. The pledge that they are asking candidates to sign,

gives this rationale:


"Our federal courts have convicted 400 terrorists since 9/11. Military commissions have

only convicted four, two of whom have already been released."


Most Americans concerned about human rights are aware that our government has continued to

torture people it knew to be innocent http://pubrecord.org/torture/8189/guantanamo-guards-

tortured-blind-man/ and that our civilian courts have often convicted or even executed

innocent people. The torture and conviction of innocent people, when done in accordance

with accepted law, may be legal, but in no way can it be considered to be just or in

keeping with human rights. As many of our Guantanamo detainees are known to be innocent,

trying them in a system that is more likely to convict them, can in no way bring about

justice or support their human rights.


I wrote to Human Rights First and asked them about this, but got no response. Sometime

since I sent my email two days ago, and today, when I went to their website to post a link

to their pledge, the text of the pledge, which I fortunately still have in the email they

sent me, seems to have vanished from their website.


I've been wracking my brains trying to figure out why Human Rights First would want more,

rather than fewer innocent people convicted. My first thought was that perhaps it was a

sneaky way for them to support the Democratic Party and Democratic candidates without

risking the loss of their 501(c)3 status by appearing to be openly partisan. I thought that

Democratic candidates would be more likely to sign their pledge than Republican candidates,

so they could publish the results without appearing to be engaged in partisan politics. But

since Justice Anthony Kennedy


agrees with them, either that wasn't their aim or else it didn't work out as they'd



The next, and more likely explanation to occur to me, was that they are more concerned with

law than with justice. The United States has a system of laws rather than a system of

justice, and the two, law and justice, can often be natural enemies. An example of this is

the Supreme Court ruling that newly discovered proof of factual innocence in the case of a

person wrongly sentenced to death, is not grounds for an appeal as long as all proper legal

procedures were carried out in their wrongful conviction. Clearly, in such a case, the laws

were upheld, but justice was not done.


It is true that military tribunals for innocent people accused of terrorism are in

violation of the U.S. Constitution and several international treaties, and are therefore

illegal. But since they apparently result in fewer convictions of innocent people, they

seem to be more, rather than less likely to bring about justice.


Any organization that claims to be concerned with human rights, such as the group calling

itself Human Rights First, should, in my humble opinion, be more concerned with justice

than with law. Otherwise they are placing law first, and justice, along with human rights,

second, third, or perhaps not even on the table.





Another well stated and thoughtful conclusion...

IMOHO :)  Thank you!

I don't think military tribunals want to set free the guilty

They do want to perpetuate war.

But they also want to justify their own programs and procedures.

Convictions would prove that they had some justification in what they were doing.

But they seem to be stymied by a lack of evidence, and frustrated by evidence of innocence.

Our government offered a fortune in bounties. This was so much money that ordinary Afghans often rushed to turn in anyone they didn't like, anyone they didn't know, members of rival tribes, etc.

In a military tribunal, I think such evidence has to be admissible to prove how the prisoner came to be in US custody.

In civilian courts, I believe that such evidence is easily excluded on grounds of national security, as it has the possibility of revealing sources and methods.

The US would pay the bounty money even if they knew the person was innocent, I think, as part of their program to win hearts and minds. They would then make a note that there was no evidence and turn the person over to be tortured.

Without any evidence of how the prisoner came to be in US custody, a jury can easily conclude that the person must have done something to bring themself to the attention of US forces, when actually they were turned in by neighbors seeking the bounty money. 


Thank you for explaining this process

Yes, that does make sense.  I wish we could figure out a way to get around the national security pretense.

who is and who isn't

a terrorist?  It would seem that military tribunals would want to set free the guilty to perpetuate war, and the civilian court would want to impose guilt to avoid law suits for illegal detainment.  I just have to wonder how fair either of these two systems will be towards any person the US deems to have been a terrorist and has detained for years upon years. 

Where is justice?

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