Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It does list the exception in the clause if anyone cared to actually read it. First of all going all the way back to the Lincoln military tribunals up to the FDR military tribunals for 8 German spies , this nation has used military courts as a means to dispense justice in times of war. Even the AG when asked at his last congressional hearing said that this nation was at War. That is not in dispute here and this nation has had a long tradtion of using such tribunals during wartime for individuals captured here and on the battlefield that have been engaged in acts of war. If these terrorists were given POW status under the Geneva Convention that would still not preclude a trial by a Military Tribunal as was the case with many of those accused of War Crimes after WW2 who were tried by International Military Tribunals.
Fearful that a civilian court would be too lenient, President Franklin D. Roosevelt ordered that the eight would-be saboteurs be tried by a military tribunal, the first held since the assassination of President Abraham Lincoln. Placed before a seven-member commission, the Germans were accused of:
Operation Pastorius - World War II German Operation Pastorius
Ex parte Quirin, 317 U.S. 1 (1942),
This decision states:
“ …the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Ex parte Quirin - Wikipedia, the free encyclopedia
Geneva Convention Article 103
. ' First sentence. -- Investigations '
Under Article 82, paragraph 1 , judicial investigations relating to a prisoner of war must be conducted in accordance with the laws, regulations and orders in force in the armed forces of the Detaining Power; questioning, the hearing of witnesses, examination by experts, etc. must take place in accordance with those rules, and in this instance the Convention cannot in any way be substituted for the provisions of national legislation. The application of the principle of assimilation should ensure that prisoners of war receive humane treatment as required by the Convention. In order, however, to prevent certain instances of abuse such as occurred during the Second World War, the present provision enjoins the authorities concerned to conduct investigations "as rapidly as circumstances permit". The fact that prisoners of war are involved may well make certain procedures more difficult; it was nevertheless desirable to permit some flexibility, in order not to give any semblance of justification for hasty investigation.
International Humanitarian Law - Third 1949 Geneva Convention
I fail to understand why anyone would see military Tribunals as abandoning tradtion or not showing the world who we are when this nation has used Military commissions and Tribunals as far back as George Washington in times of War. Could it be that in a quest for world opinion some are willing to abandon 200 plus years of tradtion in order to satisfy some deep need for other nations to like us better? I submit that tactic didnt work so well after the trial of the first WTC Bomber as we all know the results of the Second one.