Daniel Freilich's Blog

I believe the public discussion about the merits of civilian trials vs. military tribunals is misplaced—depending on the case, both can meet tests for fairness and reasonableness.

Terrorists apprehended overseas in military operations are clearly ‘enemy combatants’. They should be afforded all the rights, and lack thereof, provided in the Geneva Convention. As such, they do not have a right to a trial and can be held until military hostilities have ended. That they belong to a non-government entity is a technicality that does not preclude treating them as per the Geneva Convention (Article 5).

On the other hand, terrorists apprehended during the course of terrorism events against civilians on American soil, as well as accused American citizens, might reasonably be regarded as ‘enemy combatants’ or criminals. As ‘enemy combatants’, I don’t believe they have a right to a trial according to the Geneva Convention. But in part because of the murkiness of their legal classification, the Supreme Court has afforded some a right to a trial. Thus, many will have to be tried. No worries. It may be to the American government’s advantage to try many of them because life and other severe punishments may ensue.

So, the question of the day is where to try them.

I believe that entities within both sides of the political spectrum have elevated this issue to a political level that can only be rationalized by acknowledging that their motive is service to their special interest rather than the country. The Left (e.g., ACLU) has advocated for personal rights for these terrorists commensurate with those afforded to everyday Americans who may have gone astray briefly in a singular criminal event. Their argument is almost without regard to national security concerns. The Right has argued that national security interests require that the trials be held by military commissions, almost without regard to objective data about the efficacy of the two legal systems for terrorist cases.

Thus, neither of these arguments is reasonable. Terrorists are not common criminals and their trials must be handled differently (e.g., Classified Information Procedures Act of 1980). And civilian courts can successfully try and convict terrorists, supporting national security interests. In fact, of the 200 or so terrorists brought to trial in civilian federal courts, over 90% have been convicted. In contrast, of the three military tribunals, only one has resulted in a conviction—likely to due to lack of clarity about the terrorists’ legal status and consequent trial procedures.

The Left and Right should at least agree that from a moral point of view, both civilian trials and military commissions may be reasonable. There is just so much political oxygen available and both sides are using it up at the expense of addressing other more important issues affecting Americans (e.g., health care reform, comprehensive energy legislation).

There are practicalities that must be considered. A practical advantage of having civilian trials is that the international community will regard these as more legitimate (whether this conclusion is evidence-based or not). Another potential advantage is that predicted conviction rates may actually be higher in the civilian legal system. However, the economic and other disruptive consequences of civilian trials must be taken into account. The currently planned trials have been purported to cost $200 million to $1 billion, depending on where they are held.

A moral imperative argued on behalf of holding the trials in civilian courts must be compared with other moral imperatives, such as fighting poverty, providing health care, and addressing environmental threats. For example, such expenditures could otherwise be used to provide health insurance for one year to 14,286 to 71,429 uninsured American families (assuming an average annual family premium of $14,000). These numbers are staggering and should not be ignored in deciding on where to hold the trials.

So, let us transfer the decision about how and where to hold the trials to professionals (the Attorney General, Mr. Holder) who can weigh case-by-case objective factors, including likelihood of a successful prosecution, cost, and security and other disruptive effects. For example, an extraordinarily expensive and disruptive trial held in Manhattan seems unreasonable. On the other hand, if the Attorney General determines that secure and reasonably cost-effective civilian trials can be held for some of the terrorists at the Stewart Air National Guard Base (Newburgh, NY) in NY’s Southern District (which has successfully prosecuted terrorist cases), this is reasonable. If this cannot be accomplished for some of the terrorists, holding military commissions for these is also reasonable.

Tags: Daniel Freilich, military commissions., terrorism, terrorism trials, U.S. Senate
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Why challenge Senator Leahy?

Friday, February 5th, 2010

I was invited by the Bennington County Campaign for Liberty for an open community meeting to discuss our campaign’s platform. The meeting occurred on January 21, 2010, at the Bennington Free Library. Although gross over simplifications, the Campaign for Liberty can be thought of as being for smaller government; in contrast, our populist platform might be considered to accept larger government. Thus, not surprisingly, there was initial suspicion on both sides, but the discussion rapidly evolved into a respectful two-way discussion. Surely we did not agree on many policy issues, but there was agreement about many policy goals and need for better governance.

We thought it would be useful to share our answers to the very apt questions posed by the meeting hosts in preparation for the discussion:

1. Patrick Leahy is an entrenched incumbent – why are you taking him on?

I am challenging Senator Leahy for a number of reasons but the two overriding themes are that I believe we have lost a sense of fairness and reasonableness in American public policy and governance. Life has become unreasonably and needlessly difficult for most Americans due to inequities in our economic system. As well, the manner in which elected officials gain office and serve casts doubt on their ability to objectively represent the people. I believe the power within the Democratic Party, including Senator Leahy, has allowed this loss of fair play to happen and/or is pursuing incremental changes which are unlikely to significantly improve on the status quo. I further believe we need new congressional representation which will prioritize effort to try to restore fair play to American public policy and governance.

2. What are the most significant differences between you and Senator Leahy?

There are significant policy and governance differences:

Regarding economic policy, I support a return to progressive taxation (income, capital gains, and payroll taxes) and a single-payer (Medicare for All) primary health insurance system. I believe Vermont should lead in advocacy for restoration of an equitable economic system. In contrast, Senator Leahy has not prioritized tax reform, did not co-sponsor Senator Sanders’ single-payer Amendment (objective data show this is the only means to reasonably achieve universal coverage and cost-effectiveness). Senator Leahy has simply supported whatever incremental health care reform legislation is proposed by the Democratic Party.

Regarding environmental and energy policy, I support transformational federal legislation aimed at achieving a ‘green revolution’ in the American economy, akin to the industrial revolution of the 19th Century and the information revolution of the 20th Century. I believe this is important because energy insecurity is a potential existential threat to the U.S. and certainly represents economic, security, and life-style threats. I advocate for comprehensive multi-faceted reform that will lead to cessation of oil importation within approximately 20 years. Federal tax policy (incentives and penalties) and standards should be used to encourage smart development, building design, appliances, cars, and fuel. I advocate a progressive carbon tax in lieu of a ‘cap and trade’ system as the latter is too complex and therefore inherently non-transparent and ripe for abuse. I believe that with Vermont’s values, it should lead in promoting federal legislation and work on establishing a ‘Silicon Valley” like center of excellence in Vermont, creating lots of high-paying and rewarding jobs. In contrast, Senator Leahy has not led in this area and can be expected to support whatever incremental legislation is proposed by the Democratic Party.

Regarding foreign policy, I believe we need to pursue an ‘enlightened security’ by optimizing the way in which we treat our own people (restore economic fairness) and overseas (increase effort to address developing world poverty) and the environment. However, we need to concomitantly fully support our troops in their duties in the Global War on Terrorism. In contrast, Senator Leahy is likely to continue the U.S.’s incremental contributions to addressing poverty in the developing world and to half-heartily support our efforts in the War in Afghanistan.

Regarding governance, I believe we need significant campaign finance reform, but I also believe that in the interim, Vermont should insist on optimal ethics from its federal elected officials, whether required by law or not. I believe ethical standards of elected officials should be the same as those for non-elected officials. All significant potential conflicts of interest should be avoided. As a consequence, I believe Vermont representatives should NOT accept PAC funds, and where they have, they should recuse themselves from voting on the manner. Additionally, I believe in term limits for congressional representatives to minimize patronage that goes along with a life-long political career in Washington. Thus, I will not accept PAC contributions. In contrast, Senator Leahy has received significant PAC contributions and has not recused himself from health care reform voting (for example) despite accepting significant PAC funds from the health care industry.

3. What unique qualities and perspectives do you bring to this campaign?

After 13 years of public service as a naval officer, physician, professor, and father, I believe I can provide Vermonters with representation in Washington with fresh, creative, and unbiased ideas. Moreover, I believe in public service simply for ’service’-sake and hope to restore a sense of fair play, decency, and honor to the process of seeking federal political office. If elected, I would try my best to address our economic inequities, aim for a green revolution in our economy, and work towards an enlightened security for the United States.

Tags: Bennington, campaign finance reform, Daniel Freilich, Enlightened security, equity, Green revolution, Progressive taxation, Single payer health insurance, U.S. Senate, Universal health care insurance, Vermont
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