Wednesday, September 22, 2004

Rivkin/Casey v. Martinez Debate

I've made a decision on the Rivkin/Casey and Martinez debate over the question: "How should the U.S. try suspected terrorists?" In a very close decision, I give it to Martinez, though if this was a debate tournament it would be on a low-point win.

Rivkin and Casey cream Martinez on the legal aspect, doing a great job proving that these tribunals are legal under international law (news to me). At first glance, this was going to be enough for me to vote for them. But on closer reflection, the resolution is a question of morals, how SHOULD be try them, not how CAN we. The question then became whether or not Martinez focused enough on the "should" part in her first post to make that the framework (as it is closer to the original text of the question). Though she did get dragged into the legal debate more than was strategically wise, I concluded she focused enough on the "should" to make that a voter. Unfortunately, her best arguments were made only in the last post, but this quote from the first post is money.

The first week of proceedings before the military commissions was a travesty. The commission members (all but one of whom have no formal legal training) seemed perplexed when asked about basic legal concepts like "due process of law" and "reasonable doubt." One member confessed that he did not really know what the Geneva Conventions were—which is quite troubling given that the Conventions are the cornerstone of the modern laws of war. Even if he was not familiar with the Geneva Conventions before being appointed to the commission (though the Conventions are a mandatory topic in basic training) you would have thought this high-profile assignment might have caused him to study up. The presiding officer of the commission—the only lawyer in the bunch—was little better prepared. He reacted like a deer caught in the headlights when one defendant asked to represent himself or have a lawyer from his home country assigned to work with him. This type of request is hardly unusual, and both the civilian courts and courts martial have established legal standards for evaluating them. Because the military commissions are starting from scratch, however, every new issue of procedure or evidence will cause this kind of paralysis. And then there were the problems with the translators—apparently, they were so inadequate that the defendants and Arab-language journalists had to struggle to figure out what was going on. It's a good thing the government is not allowing audio or video recordings of the trials—it would be far too embarrassing.

It rather unfortunately seems that Martinez was flailing and just happened to catch a lucky break. But sometimes that's the way it works in debate. And I want to say that I was very impressed by Rivkin and Casey's ability to argue, persuasively, a position that I thought was both morally and legally untenable.

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