My cousin Peter Regan had a piece published in the NY Post condemning the ridiculous decision to try terrorists in NYC. His father, and my uncle, Donnie Regan died on 9/11 in the service of the FDNY. Peter was in the Marines at the time, took leave to assist in the search for survivors, served two tours in Iraq, and, after finishing his service (and a call up in the IRR!) followed in Donnie’s footsteps as a NYC Fireman.
He wrote, among other things, “I will never be convinced that these terrorists did not commit an act of war. And committing an act of war does not qualify these men to enjoy the rights and liberties of the citizens of this country, rights that so many have died to protect.”
I am proud of Jill and Peter and other 9/11 family members that are standing up to this administration and reminding them that there are public relations and moral consequences for their actions not just in Europe and the Middle East, but here at home too.
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Nice article by your cousin. I agree that 9/11 was an act of war. These terrorists should not be tried in a civilian court.
If I could comment on a related topic, it would be interesting if you might want to post something about the legal issues involved in the Ft. Hood shooting. Specifically, it seems strange that people who say that it was an act of war refer to this attack on soldiers on an army base as “terrorism” and want the shooter tried for murder. It seems to me (as someone with no legal background at all) that if we’re at war, then this is properly called a guerrilla attack. Hasan, it seems to me, should be tried for treason but not for murder, because killing enemy combatants in an act of war, even if they’re unarmed, is not murder. But I’m not a lawyer.
I really agree with your general approach to international public law, from what you’ve written in the past. I also think those views deserve much more attention than they’ve gotten.
Basically, what the Law of War provides is that what would otherwise be unlawful acts–killing soldiers, destroying property–are legally privileged if conducted by someone who is part of an armed force that itself complies with the law of war. This is the principle enshrined in Geneva. It basically requires that one is uniformed, belonging to a lawful military organization, carrying one’s arms openly, etc. So al Qaeda does not qualify for at least two reasons. One, it’s not tied to a nation-state. No such actors are allowed, and this goes back to the Treaty of Westphalia, aimed in part to reduce the power and mischief caused by the numerous mercentary organizations of the Thirty Years War. ‘
Two, it flouts every principle of the law of war, i.e., no uniforms, no punishment of its own violations of the law of war, no carrying of arms openly, etc.
Even lawful actors in the law of war can commit what are acts punishable by death. Spies, for example, acting clandestinely and not wearing uniforms or carrying arms openly have long existed but can be executed upon capture. This happened to Otto Skorzeny’s commandos in the Battle of the Bulge.
Hasan’s act was his own. So it’s murder. In this instance, it’s also treason and a violation of the UCMJ. Most terrorist acts violate both civil law and military law. So most terrorists can be treated as common criminals or as unlawful military actors at the discretion of their nation-state enemies. The IRA for instance wanted to be treated as POWs and insisted that they be allowed to observe their chain of command in prison, be allowed to wear non-prison-uniforms, etc. Al Qaeda apparently thinks it’s more adventagous to be treated as common criminals. I don’t believe they should be so treated for the reason that we need a flexible basis to keep suspected al Qaeda members in detention for the length of hostilities regardless of whether true “war crimes” other than belonging to al Qaeda can be proven.
All of al Qaeda can be kept imprisoned preventitively until the end of hostilities which is the way POWs are kept. This type of detention is considered non-punitive. Like ordinary POWs, they can also be tried and punished for war crimes through tribunals, including for the crime of murder in the form of attacking our troops. Guerillas of all kinds were treated very badly by the traditional law of war, often being shot on sight, which was allowed and recognized even in the Nuremberg Tribunals (read the Partisan case). The US refused to sign onto a 1977 protocol to the Geneva Conventions pushed by various Third World nations who were formed by guerilla type armies, i.e., Zimbabwe, to recognize certain exemptions from the law of war for guerillas. That said, even in the old days guerillas that did things like having uniforms and chains of command and behaved normally–such as the Polish Home Army–were usually treated as ordinary POWs by those who captured them. Nothing al Qaeda has done warrants that.
I think the terrorism question is more one of public perception than one of legality. He should be tried by UCMJ court martial in any case, not least because he’s a US citizen in uniform who turned on his fellows. But it can still be a terrorist act if its motive was “lone wolf jihad” which is what it appears to have been. If he were by some miracle acquitted, I’d hold him indefinitely as an unlawful combatant based on the minimal due process needed to make this finding, and whether he was formally part of al Qaeda or not should not matter. We’re at war with Islamist crazies that have loose rules of membership, and we should err on the side of safety for our fellow Americans.
Thanks, that explanation makes sense.
A bit off topic, but since you bring it up..
While the Polish Home Army should have been eligible for Geneva protections, I believe they were often just executed upon capture. The Germans also would sometimes execute a large number of civilians in reprisal for military casualities inflicted by the Polish Home Army, which I am pretty sure doesn’t fall within the bounds of the Geneva convention.
There were of course different standards of behavior between the occupation forces, regular wehrmacht units, the S.S., etc, but overall the German record on respecting the Geneva conventions during WWII is not good, to say the least.
Your cousin is spot-on.
He’s a true American hero and patriot. The people who would try KSM in a civillian court are a disgrace.
The difference between the lovers of country and the America-haters could not be more clear than in this instance.
You are correct David; I probably overstated the level of protection they received. That said, Eric von dem Bach-Zelewski did accept the mass surrender of the Home Army after the Warsaw battle and at least some of them survived the war, typically in ordinary concentration camps. You are, however, absolutely correct that in spite of the Home Army’s relatively high regard for legalities as a guerilla force, its rights were often disregarded by the Nazis and also the Soviets.
Chris… you are a gem!
Will There be more rallies, support efforts, and more things of that nature in the near future? I missed December 5th, but still want to help out and show my support.