Widow Testifies at a Military Court

[Taem]

All i have to say is, If kids right away know right from wrong, if they dont they are even more of a danger to society. I hate the lame argument of kids just dont know any better. Yes they do! Its just hard for most people to picture some one so young doing something so evil, in the 1920 women never faced murder trials because it was thought they were incapable of such a thing.

Believe me, we all feel that way when we're younger, however its experience that makes us wise. We all feel invincible, and that we know it all when we're in our teens, but we are not. And the experiences we have in life teach us otherwise. This is why minors are considered minors, and adults as adults.

[Zenda]

I guess not everyone has heard of Thomas Franck. He was probably America's (former Canadian), if not the world's, most distinguished legal expert on international law.

Franck doesn't agree with me.

You know you're supposed to give arguments in *favor* of your opinion, is it not?

[kandrathe]

You know you're supposed to give arguments in *favor* of your opinion, is it not?

Well, no. He refutes your position as well. According to the quote I left for you, Article 51 would provide for instant movement to prevent further attacks. But, were it unjustified, the aggrieved party could seek redress from the Security Council to force the aggressor to desist.

To review;

A band of mostly Saudi extremists led by a Saudi, trained in Al Queda camps in Afghanistan, then traveled through Germany, infiltrated the US, took up various training for their specific roles within the US. Then flew the planes into the buildings (or the ground for one).

The US tells Afghanistan ruling Taliban to turn over OBL, and all Al Queda terrorists, or face war. They gave them an ultimatum.

Afghanistan asks for proof that is was OBL, talks about how the Koran doesn't allow them to treat guests poorly, suggests an Islamic and UN commission to look into the matter, etc. In other words, buying time to allow OBL and his people to scatter or hole up in a nearly inaccessible mountain cave. Unless you were spoiling for a butt kicking, this was the wrong answer. With this kind of justification, here is where the weaker nation pretty much has to capitulate to the strong, because we can drop enough bombs to reduce major cities and infrastructure to metal infused rubble and the security council will not do squat about it.

The US assumes the Taliban's response means no. They reveal their evidence of Al Queda in Afghanistan to their NATO allies, which is sufficient proof for all of them to invoke Article 5 of the NATO charter for the first time in their history.

Article 5
" The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security."

You will notice that Article 51 of the UN charter is cited by NATO, and that they will defer to the Security Council once they have established measures for lasting peace and security.

[ShadowHM]

All i have to say is, If kids right away know right from wrong, if they dont they are even more of a danger to society. I hate the lame argument of kids just dont know any better. Yes they do! Its just hard for most people to picture some one so young doing something so evil, in the 1920 women never faced murder trials because it was thought they were incapable of such a thing.

1) Children learn from their surroundings. I will readily agree that some do seem to be born without empathy. But that is a long way from 'knowing right from wrong' when born.

2) Citing past legal treatment of women is irrelevant in a discussion about child soldiers. Women were not legally persons in my country at that time. They were legally equivalent to children. It is a bit of a stretch to suggest that we should now move children up to adult legal treatment too.

---

I'm curious Shadow, what do you want to see happen in this case? You obviously feel he is guilty of his crimes, correct?

He is, as far as I understand, absolutely guilty of killing at least one American soldier.

Assuming this is the case, then based on what I've read thus far, you think he should face punishment, however as a child solider, correct?

Correct.

So my question is, what is the difference between tried as a "child solider" vs an adult solider? Are there any distinctions?

I strongly believe that all mitigating circumstances should be taken into consideration when sentencing anyone. Sometimes there are none. Sometimes there are many. Age is, in my opinion, certainly a mitigating factor.

Now I see what you've been saying, and I have to agree that it's an unfortunate situation, one this kid probably couldn't have gotten out of. He may have been born in Canada, but was raised ultimately as a solider and a fighter. His choice? Or all just part of "growing up"? Who's to say, and the morality of it will be argued for some time I presume, yet I cannot forget, even when acknowledging his possibly unavoidable past, that innocents die all the time, and rather this child was mentally innocent or not is irrelevant because the fact of the matter is he is a killer, and an enemy combatant. To me, it doesn't get much clearer than that. Should he be charged "as a child"? Sure, why not - if there are indeed rules for that sort of thing. But he must face judgment, mark my words!

You asked what I 'want to see happen in this case'.

This particular child soldier has spent eight years in Gitmo. He (according to sworn testimony by the man who did it) was told, on capture, that he was going to be sent to an American prison where he would be raped to death by black prison imates. Now, by all accounts Gitmo is not quite as luxurious as your standard prison where your standard murderer ends up, although he probably was not raped there. But, my opinion is that justice for Omar would be served at this point by sentencing him to time served.

However, there is much more to this case now than serving justice. And, frankly, I don't know what I want to see happen. I believe that his education at Gitmo is unlikely to have reversed that which he received before Gitmo. There is not much chance of any semblance of a 'normal life' in Canada for him, regardless of whether he returns to his family here. Additionally, he is likely to be perceived as both royalty and martyr by al-Qaida devotees. I suspect that his first move as a free man would be to return to them. And that could present a direct danger to many people if we do let him go. The flip side, of course, is that he is even more of a martyr if we continue to incarcerate him. I see no easy or completely right answer to your question.

For a FAQ-style review of the case and discussion of the ramifications of varying options, see here:
http://www.cbc.ca/canada/story/2010/11/1...s-faq.html

[kandrathe]

But, my opinion is that justice for Omar would be served at this point by sentencing him to time served.

However, there is much more to this case now than serving justice. And, frankly, I don't know what I want to see happen. I believe that his education at Gitmo is unlikely to have reversed that which he received before Gitmo. There is not much chance of any semblance of a 'normal life' in Canada for him, regardless of whether he returns to his family here. Additionally, he is likely to be perceived as both royalty and martyr by al-Qaida devotees. I suspect that his first move as a free man would be to return to them. And that could present a direct danger to many people if we do let him go. The flip side, of course, is that he is even more of a martyr if we continue to incarcerate him. I see no easy or completely right answer to your question.

For a FAQ-style review of the case and discussion of the ramifications of varying options, see here:
http://www.cbc.ca/canada/story/2010/11/1...s-faq.html

Wow. That was exactly my thinking on this. Time served, plus a probationary period to give some chance at returning him to a more productive life.

[Zenda]

Well, no. He refutes your position as well. According to the quote I left for you, Article 51 would provide for instant movement to prevent further attacks.

Franck did not refute my position, nor the position of the victim of your red-baiting. He didn't deny that invoking Article 51 requires "armed attacks", and his statement that in cases of self-defense the evidence can be provided afterwards is totally in line with the necessity for self-defense being "instant, overwhelming, leaving no choice of means, and no moment for deliberation". Also, I never claimed the issue is lack of evidence, or the timing of presentation. There are some points to be made there, but so far I didn't.

He only concerned himself with evidentiary issues, not with other issues regarding the validity of Article 51. To better understand the meaning behind Franck's quote, I suggest you read this page (first hit in a Google search with 'Thomas Franck on the war in Afghanistan'), and give special attention to the follow-up on that quote:

In actuality, though, this scenario leaves the Taliban with two problematic options. The first option is to initiate more attacks on the U.S. and/or U.S. allies, justified under Article 51 if the Taliban deems the U.S.-led invasion aggression (a determination to be made by the Taliban’s “sole volition,” according to Franck).

The second option isn’t really an option. An appeal by the Taliban to the UN Security Council would be met with the U.S. veto, for the U.S. would not authorize military actions against itself.

But, were it unjustified, the aggrieved party could seek redress from the Security Council to force the aggressor to desist.

The 9/11 attacks were unjustified too, so the USA had every right to invoke the Security Council as well. They certainly would have had a good chance to get everyone behind them, where the Taliban has not. Imagine that: bombing Afghanistan while the UN gets all the burdens of cost and responsibility. Wouldn't that be nice?

They reveal their evidence of Al Queda in Afghanistan to their NATO allies, which is sufficient proof for all of them to invoke Article 5 of the NATO charter for the first time in their history.

NATO is not a part of the Security Council, nor of the UN. I don't see how getting help from personal allies makes anything legitimate. Besides, if NATO's Article 5 is 'in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations', it will fail when said Article 51 fails.

they will defer to the Security Council once they have established measures for lasting peace and security.

Looks like things will go on for a while, then.

[--Pete]

Hi,

He is, as far as I understand, absolutely guilty of killing at least one American soldier.

I strongly believe that all mitigating circumstances should be taken into consideration when sentencing anyone. ... Age is, in my opinion, certainly a mitigating factor.

This particular child soldier has spent eight years in Gitmo. ... But, my opinion is that justice for Omar would be served at this point by sentencing him to time served.

I see no easy or completely right answer to your question.

I pretty much agree with all this. Justice should be unbiased. And, I don't think that justice and political agenda should be mixed.

Having said that, it is the idea of having sympathy for him that bothers me. I regret the existence of the situation that led to this issue. Just as I regret the conditions in the inner cities that have led to gang activity. But, in neither case do I feel any empathy for those who embraced those paths, through youthful ignorance or not. If the ends were inescapable, we'd have hundreds, even thousands, in his situation. That we don't indicates, to me, that the majority have resisted the same influences to become relatively normal people.

And, going back to the original post for a minute, I still maintain that a person's putative character is not a valid issue at a trial not even in the sentencing phase. We are not (or, at least, should not) be trying a person's soul. We should be trying the facts and events, determining guilt or innocent, and punishing the guilty without consideration of whether they're saints or sinners.

--Pete

[kandrathe]

Well, no. He refutes your position as well. According to the quote I left for you, Article 51 would provide for instant movement to prevent further attacks.

Franck did not refute my position, nor the position of the victim of your red-baiting. He didn't deny that invoking Article 51 requires "armed attacks", and his statement that in cases of self-defense the evidence can be provided afterwards is totally in line with the necessity for self-defense being "instant, overwhelming, leaving no choice of means, and no moment for deliberation". Also, I never claimed the issue is lack of evidence, or the timing of presentation. There are some points to be made there, but so far I didn't.

He only concerned himself with evidentiary issues, not with other issues regarding the validity of Article 51. To better understand the meaning behind Franck's quote, I suggest you read this page (first hit in a Google search with 'Thomas Franck on the war in Afghanistan'), and give special attention to the follow-up on that quote:

In actuality, though, this scenario leaves the Taliban with two problematic options. The first option is to initiate more attacks on the U.S. and/or U.S. allies, justified under Article 51 if the Taliban deems the U.S.-led invasion aggression (a determination to be made by the Taliban’s “sole volition,” according to Franck).

The second option isn’t really an option. An appeal by the Taliban to the UN Security Council would be met with the U.S. veto, for the U.S. would not authorize military actions against itself.

But, were it unjustified, the aggrieved party could seek redress from the Security Council to force the aggressor to desist.

The 9/11 attacks were unjustified too, so the USA had every right to invoke the Security Council as well. They certainly would have had a good chance to get everyone behind them, where the Taliban has not. Imagine that: bombing Afghanistan while the UN gets all the burdens of cost and responsibility. Wouldn't that be nice?

Then you didn't understand what Franck wrote. His position is much more ambiguous. You quoted back to me, some commentary by Rob Grace. And, I could care less if your source is a Marxist, but I do impugn her for being obviously rabidly partisan. So, it's not that she is a Marxist, it is that she is not being an impartial, and fair minded Marxist. I could toss at you some rabid right winger like Laura Ingram. Does that help in the discourse? So don't give me Raul Castro's views, or Noam Chomsky, or Rob Grace if their position is hard left. Yes, there is a huge contingent of leftist lawyers who believe that war is immoral. You don't need to prove that.

Looks like things will go on for a while, then.

This, we agree upon.

[ShadowHM]

Hi Pete

Having said that, it is the idea of having sympathy for him that bothers me. I regret the existence of the situation that led to this issue. Just as I regret the conditions in the inner cities that have led to gang activity. But, in neither case do I feel any empathy for those who embraced those paths, through youthful ignorance or not. If the ends were inescapable, we'd have hundreds, even thousands, in his situation. That we don't indicates, to me, that the majority have resisted the same influences to become relatively normal people.

There are two problems with that analysis. First, you have conflated American inner city gang violence with the the conditions of warfare. And secondly your facts are in error. There are thousands in his situation. I wish that were not so.

That you would refuse to sympathize with these children bothers me.

Should you wish to discuss the rationale for zero flexibility in sentencing (i.e. 'punishing the guilty without consideration of whether they're saints or sinners') I invite you to start another thread. This one is already messy enough.

[--Pete]

Well, hi, Shadow,

There are two problems with that analysis. First, you have conflated American inner city gang violence with the the conditions of warfare.

Not that much difference between the two for the people living there.

And secondly your facts are in error. There are thousands in his situation. I wish that were not so.

Actually, my facts are not in error. We are not talking about a child abducted from his family and forced to become a soldier. That is what that report is about. That condition is terrible, but not pertinent to this case. This case is more like the 'child' terror bombers that walk into a crowded place with a body bomb and 'sacrifice' themselves for their beliefs. You may argue that they are 'brainwashed' into their beliefs, but not that they are coerced. Unlike the child soldiers of your link, these go willingly, even avidly, into battle or martyrdom.

That you would refuse to sympathize with these children bothers me.

I don't 'refuse' to sympathize. You make it sound like I choose my emotions. I do choose my philosophies (or, at least, I'm under the illusion I do), but I am not in control of my emotions, only whether or not I display them.

Should you wish to discuss the rationale for zero flexibility in sentencing (i.e. 'punishing the guilty without consideration of whether they're saints or sinners') I invite you to start another thread. This one is already messy enough.

Isn't how this thread started? About the inherent wrongness of victims statements? I don't believe in zero flexibility in sentencing, but I do think that the punishment should fit the circumstances of the crime and not of the criminal (or of the victim).

--Pete

[ShadowHM]

There are two problems with that analysis. First, you have conflated American inner city gang violence with the the conditions of warfare.

Not that much difference between the two for the people living there.

I remain skeptical.

And secondly your facts are in error. There are thousands in his situation. I wish that were not so.

Actually, my facts are not in error. We are not talking about a child abducted from his family and forced to become a soldier. That is what that report is about. That condition is terrible, but not pertinent to this case. This case is more like the 'child' terror bombers that walk into a crowded place with a body bomb and 'sacrifice' themselves for their beliefs. You may argue that they are 'brainwashed' into their beliefs, but not that they are coerced. Unlike the child soldiers of your link, these go willingly, even avidly, into battle or martyrdom.

So you think that battlefield in Afghanistan was full of other innocent non-combatants? Again, I remain skeptical.

That you would refuse to sympathize with these children bothers me.

I don't 'refuse' to sympathize. You make it sound like I choose my emotions. I do choose my philosophies (or, at least, I'm under the illusion I do), but I am not in control of my emotions, only whether or not I display them.

Ok, so you have chosen a philosophy that has no room for sympathy for children forced into battle. I don't see much of a difference, in the end.

Should you wish to discuss the rationale for zero flexibility in sentencing (i.e. 'punishing the guilty without consideration of whether they're saints or sinners') I invite you to start another thread. This one is already messy enough.

Isn't how this thread started? About the inherent wrongness of victims statements? I don't believe in zero flexibility in sentencing, but I do think that the punishment should fit the circumstances of the crime and not of the criminal (or of the victim).

--Pete

I think that the circumstances of both the crime and the criminal are pertinent to sentencing, as the desired societal outcome is to have the criminal cease doing the activity that he/she was sentenced for. Since there are a multitude of circumstances for both, they are both worthy of consideration when sentencing.

[kandrathe]

This caught my eye this morning, for two reasons; 1) because how whacked CNN's moral compass has become, and 2) this 10 year old who was shanghaied into the Khmer Rouge, who at 40, is still trying to assuage his guilty conscience.

CNN Heroes -- Cambodian man clears land mines he set decades ago

This is, and has been, a bigger problem than people are aware. The Geneva Conventions, the UN Charter, and even the NATO charter are documents that assume a certain type of warfare, and a certain type of human decency that are increasingly absent from our world conflicts.

Whether we try to discuss the legality of warfare itself, or the disposition of children engaged in the conflict, we find ourselves relying on legal structures based upon faulty assumptions.

[--Pete]

Hi,

Ok, so you have chosen a philosophy that has no room for sympathy for children forced into battle.

I fear I have not made my (admittedly inconsistent and murky) position clear. I would propose to agree to disagree, except that I really don't think we disagree that much on the issue, just on this instance.

... the desired societal outcome is to have the criminal cease doing the activity that he/she was sentenced for.

I can't agree with that. That was the big 'rehabilitation' argument of the '60s. Mostly, it doesn't work. That's not opinion, that's measurable fact. Recidivism rates run as high as 75% depending on the crime. The average person sentenced to jail has been arrested for about 20 crimes (not all convictions, but knowing who did it and proving who did it are two very different things).

Nor do I believe in punishment per se. The purpose of punishment is to alter behavior. It doesn't work on people past their early teens (and often not even then).

The only purpose I see for incarceration is to sequester the predators from their prey. Which is why I approve of the three strikes rule, although I wonder why three -- other than the baseball analogy, why not two? Can a person 'mistakenly' hold up a liquor store? Can they make that same 'mistake' twice?

But even on this issue, I have mixed feelings. For one thing, I no longer trust the US legal system to dispense justice. Nor do I believe (as I used to) that their error rate is acceptable. For those two reasons, and until they're corrected, I cannot support the death penalty at this time. My second problem is that entirely too many moral issues have been and are being legislated and criminalized. Anything that doesn't do damage to a person's body or property should not be a crime. At most, a misdemeanor, subject to fine and/or community service. But that is another long rant in itself.

Take care. Have a happy (second) thanksgiving -- IIRC, you live close enough to the border to be entitled to the good things we have.

--Pete

[Taem]

That was the big 'rehabilitation' argument of the '60s. Mostly, it doesn't work. That's not opinion, that's measurable fact. Recidivism rates run as high as 75% depending on the crime. The average person sentenced to jail has been arrested for about 20 crimes (not all convictions, but knowing who did it and proving who did it are two very different things).

Agreed.

Nor do I believe in punishment per se. The purpose of punishment is to alter behavior. It doesn't work on people past their early teens (and often not even then).

I don't know. In the middle-east, if you are caught stealing and have a hand chopped off, I'd say that would pretty much end your thieving career picking pockets or what-have-you! The objective being to stop the criminal from doing what they are doing, *not* to rehabilitate them, this makes logical sense. Combined with what you stated in the three-strikes law, we have the following:

Each crime committed gets typical jail time for "rehabilitative" purposes. However when you have committed the same infraction 3x, you move to PUNISHMENT phase where you loose a body part pertaining to that infraction! With a three-strike system, you are pretty much guaranteeing that even if the justice system has failed one time for this person (innocence project type scenario), the odds it would have failed two more times is significantly low! This ensures more safety to the non-criminal citizens by removing a part of how these criminals activate; such as removing the penis of a 3x convicted child rapist, taking the life of a convicted killer, removing the hand of a chronic thief, etc.

Anything that doesn't do damage to a person's body or property should not be a crime. At most, a misdemeanor, subject to fine and/or community service.

Too easy to abuse. You have drug-lords that simply bark orders and never actually get their hands dirty in Mexico, but thousands suffer because of their effect. You would have the middle-men punished but not the boss himself? This, I do not agree with!

[--Pete]

Hi,

You have drug-lords that simply bark orders and never actually get their hands dirty in Mexico, but thousands suffer because of their effect. You would have the middle-men punished but not the boss himself? This, I do not agree with!

Never said that, never implied it. For the time being, let's assume the drug trade should be illegal and is hurting someone. Then everybody involved is guilty of hurting someone. Just like a murder for hire is just as much a crime for the person who ordered it as for the person who committed it.

Now, as far as the drug trade and drug lords, that's another subject. It's been glueified in the past, but if you want to reopen that subject, then might I suggest you start a new thread -- this one's been macraméd enough.

--Pete

[Zenda]

Then you didn't understand what Franck wrote.

Allright, then show the page where you got the quote from. That should provide some context.

Marxist here... Leftist there...

Really good arguments you got there.

---

That was the big 'rehabilitation' argument of the '60s. Mostly, it doesn't work. That's not opinion, that's measurable fact. Recidivism rates run as high as 75% depending on the crime. The average person sentenced to jail has been arrested for about 20 crimes

The exceptional high recidivism rates in the US are more likely to be connected with the circumstances in your jails. Each year, as many as 70% of inmates in these prisons are assaulted by another inmate. Rehabilitation programs, otoh, generally reduce recidivism by 10% or more. That's not opinion, but a statistically proven tendency. In terms of crime reduction, rehabilitation is much cheaper as prolongued incarceration. There are plenty of links on this, but I'll just present this one:

The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews

Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large.

PS. Tried to make seperate replies, but the forum software kept joining them. Is that a feature, or something I must have done wrong?

[ZatarRufus]

PS. Tried to make seperate replies, but the forum software kept joining them. Is that a feature, or something I must have done wrong?

It's a feature.

Oh yeah, also when you reply in threaded view to more than one person on the same line of the thread, it combines your posts. An interesting feature. This is more of a comment than a complaint. Example: Pete makes a post, Jester and Kath respond to that post in separate threads, I make a response to each of them, and my two posts become one with a horizontal line separating them.

I notice it happens in linear mode as well and appears to be based on the amount of time between your replies.

[--Pete]

Hi,

There are plenty of links on this, but I'll just present this one:

The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews

Great link. An abstract which says almost nothing. "The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large." What does that mean? That the rate drops from 75% to 60% for car boosters? When you try to get to the full article, you get sent to a page telling you that they'll give it to you for just $20US. Just the kind of half-assed argument you normally put forward. And 19.98 more than I'd spend to prove (once again) that you're an idiot.

... something I must have done wrong?

Yeah, you're engaging your fingers with your mind in prejudiced neutral. And forgetting to wipe afterward.

--Pete

[Zenda]

I notice it happens in linear mode as well and appears to be based on the amount of time between your replies.

Thanks, that explains it. Time between postings was indeed very short, because the writing itself was done in Notepad earlier.

---

Great link. An abstract which says almost nothing.

Well, so far it beats your links.

Yeah, you're engaging your fingers with your mind in prejudiced neutral. And forgetting to wipe afterward.

Funny how you hold 15-year-olds fully responsible for their deeds, when you are still displaying such juvenile behaviour at your own age.

[kandrathe]

Then you didn't understand what Franck wrote.

Allright, then show the page where you got the quote from. That should provide some context.

Terrorism and the Right of Self-Defense
Thomas M. Franck
The American Journal of International Law
Vol. 95, No. 4 (Oct., 2001), pp. 839-843 (article consists of 5 pages)
Published by: American Society of International Law

Marxist here... Leftist there...

Well, the truth is there when you look. IADL is represented by "Haldane Society of Socialist Lawyers" in the UK. It's the same in the US, only they call themselves "Democratic" since the "S" word is not that favorable in the US. Pretty much, the IADL is a group of lawyers most closely affiliated politically with the socialist/communist movements around the world. Marjorie Cohn is a person hopelessly biased by her political prejudices. It's like using Genghis Khan as your source to debate for military action. So, yeah, of course, she's against anything the Republican or Democratic party would do, and most particularly when it comes to wars.