As of this writing, the Attorney General of the United States has decided to prosecute the planners of the 9/11 attacks on the World Trade Center and the Pentagon before military tribunals at Gitmo, Cuba. The ensuing public discussions were fascinating to listen to. Some commentators said the attacks were a criminal act that should be adjudicated in the criminal courts by means of a jury trial. Other commentators assert that the attacks were an act of war and should be adjudicated by the military pursuant to their protocols. What do you think? Whose position is correct? Here are some of my thoughts on the subject.
As a career police officer I do have a nodding acquaintance with the criminal justice system. I was assigned as a police prosecutor for several years during my career so I had to know how to prosecute a criminal case in a court of law. Based upon that knowledge and experience in the courts, I have formed my opinion.
The military and law enforcement discharge their responsibilities under completely different rules of engagement, having vastly different objectives. The military's job is to blow stuff up, break things and kill the enemy who is designated as such by competent civilian command authority.
Law enforcement on the other hand, although a quasi-military organization, seeks to serve and protect the citizenry and see that justice is served following well defined rules and procedure established by laws enacted by civilian legislators and prior decisions by courts of competent jurisdiction.
The protocols employed by the military and the protocols employed by law enforcement are incompatible with each other. There is a law called the "Posse Comitatus Act" that specifically prohibits the government from using the military to enforce civilian law. That means federal troops cannot be used as a police force.
Therefore my calculus is as follows...If the military is being used to respond to a given act perpetrated by other entities, that act is NOT a criminal act but an act of war. However, if the act is a crime as defined by laws properly enacted and normally enforced by law enforcement, the act is a crime.
The acts that occurred on September 11th were acts of war and not crimes. The response was largely conducted by the military. Therefore it was improper for the U.S. Attorney General to attempt to prosecute these cases in a civilian court of law. The proper venue for these prosecutions are in military courts before military tribunals. Anyways, that's how I see it. What do you think?