And here is why you don't civilian trial terrorists from Gitmo

[Kevin_Kennedy]

Thankfully those idiots aren't the ones calling the shots. Did you read the comments on that article from the link in the OP?

I agree with them that's it's dangerous to release these people, but they can't stay locked up forever without trial either, and you can't try them without Due Process - which was violated the moment the CIA deviated from the UCMJ.

Like I said, lose-lose. I wish I had an answer, but I'm just not sure there is one.

Obama is listening to them, however.

Yes...and no. If he were really listening to them, there wouldn't be a trial taking place in District Court. And especially not in NYC. On the other hand, with all of the communities that offered to host a supermax to house detainees and the finding that Gitmo is subject to US jurisdiction (no shocker there), there is no other reason Gitmo is still open and populated. I give him a 50% on that one.

I seem to recall Obama giving in to conservative demands that he not have a trial in New York for Khalid Sheikh Mohammed.

 

[Sheldon]

Thankfully we don't have a special CIA court that's allowed to do whatever it wants. Yet.

Don't say that "yet". The day that happens is the day I really do pack my bags and head for the northern border. I don't think the system is that irretrievably broken though....yet.

We're already seeing the beginning stages. We actually have people calling for special lawless trials for people designated by the President to be "enemy combatants," because certainly we can't follow the rule of law for these evil evil people. We have torture, we have rendition, we have indefinite detention without a trial, and it's the natural of tendency for government to grow. It's a sad state of affairs.

Justifying exceptions to due process doesn't just put us on the road to true tyranny; it puts us in the express lane. Like extra-judicial killing, it's a power the government shouldn't have.

You nailed it with the first post. This isn't a case against civilian courts. It's a case against torture.

Enemy combatant is a shape-shifting term. A Texas kingpin arrested in the War on Some Drugs could be an enemy combatant facilitating the weapons-buying of Mexican cartels that are cutting peoples' heads off in the Arizona desert...

 

[goldcatt]

Thank you George W. Bush for this clusterfuck.

President Bush is not the President giving us any clusterfuck. That accolade goes entirely to the idiot President presently infesting the Oval Orifice.

Bullshit. I won't argue Obama's merits....because there aren't any to argue. Bush created this monster, ignored it and left it for the next guy to sort out......whoever he or she might have been. Yeah, it's Obama's to deal with NOW, but it is because Bush wouldn't deal with it THEN.

Yup. Obama isn't exactly covering himself with glory on it, but in all fairness he inherited it. Bush listened to the wrong people and left the mess in his successor's lap with a grin and a wave as he rode out of town. The military was right in this situation from the start when they protested CIA involvement and tactics - Bush should have listened to them. Then we could have fair military tribunals OR civilian trials. But nobody can fix stupid now.

 

[bodecea]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

Absolutely right. We don't need those 4th/5th/6th amendment rights....they just get in the way of REAL Justice.

 

[Sheldon]

Thankfully those idiots aren't the ones calling the shots. Did you read the comments on that article from the link in the OP?

I agree with them that's it's dangerous to release these people, but they can't stay locked up forever without trial either, and you can't try them without Due Process - which was violated the moment the CIA deviated from the UCMJ.

Like I said, lose-lose. I wish I had an answer, but I'm just not sure there is one.

Obama is listening to them, however.

Yes...and no. If he were really listening to them, there wouldn't be a trial taking place in District Court. And especially not in NYC. On the other hand, with all of the communities that offered to host a supermax to house detainees and the finding that Gitmo is subject to US jurisdiction (no shocker there), there is no other reason Gitmo is still open and populated. I give him a 50% on that one.

I can understand the reasons why we're still mired in Iraq. I can understand why the economy is still sluggish. No President has a magic wand. But shutting down Gitmo is one of those things that Obama could wave the metaphorical wand over. Even though I voted for him I didn't buy into the Hope&Change (TM) nonsense... but I did think he would at least do shut down Gitmo. That place and the indefinite detention is represents is a stain on the principles of justice in our country. I thought washing that stain away was a core goal of modern liberalism.

 

[goldcatt]

Obama is listening to them, however.

Yes...and no. If he were really listening to them, there wouldn't be a trial taking place in District Court. And especially not in NYC. On the other hand, with all of the communities that offered to host a supermax to house detainees and the finding that Gitmo is subject to US jurisdiction (no shocker there), there is no other reason Gitmo is still open and populated. I give him a 50% on that one.

I can understand the reasons why we're still mired in Iraq. I can understand why the economy is still sluggish. No President has a magic wand. But shutting down Gitmo is one of those things that Obama could wave the metaphorical wand over. Even though I voted for him I didn't buy into the Hope&Change (TM) nonsense... but I did think he would at least do shut down Gitmo. That place and the indefinite detention is represents is a stain on the principles of justice in our country. I thought washing that stain away was a core goal of modern liberalism.

Keep dreaming.

It may be, no, IS a core goal of modern liberalism. But in this regard Obama is more of a neocon than a liberal. Which is one of the reasons many of his supporters on the civil libertarian left are frustrated with him.

Flames in 3...2...1...but the truth is the truth.

 

[Sheldon]

Yes...and no. If he were really listening to them, there wouldn't be a trial taking place in District Court. And especially not in NYC. On the other hand, with all of the communities that offered to host a supermax to house detainees and the finding that Gitmo is subject to US jurisdiction (no shocker there), there is no other reason Gitmo is still open and populated. I give him a 50% on that one.

I can understand the reasons why we're still mired in Iraq. I can understand why the economy is still sluggish. No President has a magic wand. But shutting down Gitmo is one of those things that Obama could wave the metaphorical wand over. Even though I voted for him I didn't buy into the Hope&Change (TM) nonsense... but I did think he would at least do shut down Gitmo. That place and the indefinite detention is represents is a stain on the principles of justice in our country. I thought washing that stain away was a core goal of modern liberalism.

Keep dreaming.

It may be, no, IS a core goal of modern liberalism. But in this regard Obama is more of a neocon than a liberal. Which is one of the reasons many of his supporters on the civil libertarian left are frustrated with him.

Flames in 3...2...1...but the truth is the truth.

How could you speak of my messiah in such a disrespectful tone?

 

[Liability]

Thank you George W. Bush for this clusterfuck.

President Bush is not the President giving us any clusterfuck. That accolade goes entirely to the idiot President presently infesting the Oval Orifice.

Bullshit. I won't argue Obama's merits....because there aren't any to argue. Bush created this monster, ignored it and left it for the next guy to sort out......whoever he or she might have been. Yeah, it's Obama's to deal with NOW, but it is because Bush wouldn't deal with it THEN.

You are not exactly what we like to call "correct."

We do not know what "methods" were used to extract the information from this "criminal defendant." Maybe it was waterboarding in which case it isn't fucking "torture," in which case nothing done by the Bush Administration is any part of the problem.

But the fact that the "defendant" is being subjected to our civilian justice system as a mere "criminal" is in and of itself sufficient to disprove your contention.

Judge Kaplan is not "wrong," nonetheless. As long as the "defendant" is being tried as a mere criminal in our civilian court of justice, he is entitled AS a matter of LAW to the protections we accord to those accused of crimes.

Also, it was noted earlier that even a military tribunal would have to accord to the accused some "due process." While that is certainly true, the question is not resolved with that neat little phrase. The question becomes "what process IS due to this guy, under the circumstances, in the proper forum?" It may not entail depriving the government of the use of the information he gave to the government, for example, for a variety of reasons.

 

[goldcatt]

I can understand the reasons why we're still mired in Iraq. I can understand why the economy is still sluggish. No President has a magic wand. But shutting down Gitmo is one of those things that Obama could wave the metaphorical wand over. Even though I voted for him I didn't buy into the Hope&Change (TM) nonsense... but I did think he would at least do shut down Gitmo. That place and the indefinite detention is represents is a stain on the principles of justice in our country. I thought washing that stain away was a core goal of modern liberalism.

Keep dreaming.

It may be, no, IS a core goal of modern liberalism. But in this regard Obama is more of a neocon than a liberal. Which is one of the reasons many of his supporters on the civil libertarian left are frustrated with him.

Flames in 3...2...1...but the truth is the truth.

How could you speak of my messiah in such a disrespectful tone?

You poor duped koolaid drinking Obamabot...get it through your head. He's the Antichrist, not the Messiah. You know the Bible clearly states the Antichrist will be a gay Muslim from Kenya who is President of the United States. Says so in that code thingy people are talking about.

I got it in my e-mail so it has to be true!

 

[Liability]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

Absolutely right. We don't need those 4th/5th/6th amendment rights....they just get in the way of REAL Justice.

Why so many of you on the far left make the assumption that an unlawful combatant has a "right" under our Constitution to the rights associated with mere criminals remains a sordid mystery.

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

What "right" should a captured al qaeda combatant have to the order of a Judge to seize "evidence" from him? How does that make ANY sense? "Ok, look, Ahmed. You have highly necessary military intelligence of the next planned attack against our troops (or against one of our cities) and we WANT that damn information, so we are through with asking you politely! Motherfucker, we're taking you to Court, by God. We are gonna get a JUDGE to allow us to seize your computer and to to interrogate you, shitball! We'll show YOU who's boss!"

U.S. Intelligence Operative: "Of course, first, let us give you your Rights. You have the right to remain silent ..."
Ahmed: "I accept."
U.S. Intelligence Operative: "You accept?"
Ahmed: "Yes, infidel. I accept. I invoke my 'right' to remain silent. Also, may I have my lawyer, now? Thanks, infidel. Much obliged."

 

[goldcatt]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

Absolutely right. We don't need those 4th/5th/6th amendment rights....they just get in the way of REAL Justice.

Why so many of you on the far left make the assumption that an unlawful combatant has a "right" under our Constitution to the rights associated with mere criminals remains a sordid mystery.

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

What "right" should a captured al qaeda combatant have to the order of a Judge to seize "evidence" from him? How does that make ANY sense? "Ok, look, Ahmed. You have highly necessary military intelligence of the next planned attack against our troops (or against one of our cities) and we WANT that damn information, so we are through with asking you politely! Motherfucker, we're taking you to Court, by God. We are gonna get a JUDGE to allow us to seize your computer and to to interrogate you, shitball! We'll show YOU who's boss!"

U.S. Intelligence Operative: "Of course, first, let us give you your Rights. You have the right to remain silent ..."
Ahmed: "I accept."
U.S. Intelligence Operative: "You accept?"
Ahmed: "Yes, infidel. I accept. I invoke my 'right' to remain silent. Also, may I have my lawyer, now? Thanks, infidel. Much obliged."

You're confusing two separate issues here. A lot of folks are doing the same thing.

Assuming the detainees were rightfully classified as "Enemy Combatants" in the first place, which is arguable on both sides, that classification applies to International law under the Geneva Convention. Not to US law under the Constitution. So "enhanced interrogation techniques" will not get anybody hauled into the Hague, but they don't waive the Due Process requirement of the Courts - civil OR military.

Anybody here know the rules of evidence for military tribunals and how they differ from those of the Federal Courts? Because that's what would be used if these folks weren't tried in civilian court - and while I don't know what those rules are, I do know they are based on the UCMJ - or rather the UCMJ is based on what can be admitted into evidence at tribunal. Which is what the military foresaw and why they wanted the UCMJ used from the beginning when these critters were interrogated. They should have been heeded.

I have no problem with military tribunals - as long as they're run with Due Process and by the book. No special courts to clean up special CIA bullshit.

 

[Liability]

Absolutely right. We don't need those 4th/5th/6th amendment rights....they just get in the way of REAL Justice.

Why so many of you on the far left make the assumption that an unlawful combatant has a "right" under our Constitution to the rights associated with mere criminals remains a sordid mystery.

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

What "right" should a captured al qaeda combatant have to the order of a Judge to seize "evidence" from him? How does that make ANY sense? "Ok, look, Ahmed. You have highly necessary military intelligence of the next planned attack against our troops (or against one of our cities) and we WANT that damn information, so we are through with asking you politely! Motherfucker, we're taking you to Court, by God. We are gonna get a JUDGE to allow us to seize your computer and to to interrogate you, shitball! We'll show YOU who's boss!"

U.S. Intelligence Operative: "Of course, first, let us give you your Rights. You have the right to remain silent ..."
Ahmed: "I accept."
U.S. Intelligence Operative: "You accept?"
Ahmed: "Yes, infidel. I accept. I invoke my 'right' to remain silent. Also, may I have my lawyer, now? Thanks, infidel. Much obliged."

You're confusing two separate issues here. A lot of folks are doing the same thing.

Except the actual confusion is not on my end. It is on yours.

Assuming the detainees were rightfully classified as "Enemy Combatants" in the first place, which is arguable on both sides, that classification applies to International law under the Geneva Convention. Not to US law under the Constitution. So "enhanced interrogation techniques" will not get anybody hauled into the Hague, but they don't waive the Due Process requirement of the Courts - civil OR military.

Nobody said they waived Due Process. What I DID say was that it raises the question of "WHAT process is due?" That was a correct statement (or question, as it were). It still is.

Anybody here know the rules of evidence for military tribunals and how they differ from those of the Federal Courts? Because that's what would be used if these folks weren't tried in civilian court - and while I don't know what those rules are, I do know they are based on the UCMJ - or rather the UCMJ is based on what can be admitted into evidence at tribunal. Which is what the military foresaw and why they wanted the UCMJ used from the beginning when these critters were interrogated. They should have been heeded.

I have no problem with military tribunals - as long as they're run with Due Process and by the book. No special courts to clean up special CIA bullshit.

Which all begs the question you have ducked. "WHAT process IS 'due'?"

 

[Liability]

Instead of blithely assuming that because we have made the unilateral mistake of treating these bastards as mere criminals we are therefore bound to treat all captured al qaeda scum as criminals, we need to recognize that the problem is much thornier than that.

Once we got this asshole into our Court of LAW, as the Judge just showed us, the problem becomes urgent.

But if he were in a military tribunal, that same problem might not obtain. For, you see, I wasn't just being rhetorical when I asked the question "What process is 'due'?"

Let me quote an entire article (with permission):

Link first and last: http://www.stratfor.com/weekly/20091116_postsept_11_legal_dilemma

Deciphering the Mohammed Trial
November 16, 2009 | 2035 GMT
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Deciphering the Mohammed Trial

By George Friedman

U.S. Attorney General Eric Holder has decided that Khalid Sheikh Mohammed will be tried in federal court in New York. Holder’s decision was driven by the need for the U.S. government to decide how to dispose of prisoners at Guantanamo Bay, a U.S. Naval base outside the boundaries of the United States selected as the camp in which to hold suspected al Qaeda members.

We very carefully use the word “camp” rather than prison or prisoner of war camp. This is because of an ongoing and profound ambiguity not only in U.S. government perceptions of how to define those held there, but also due to uncertainties in international law, particularly with regard to the Geneva Conventions of 1949. Were the U.S. facility at Guantanamo a prison, then its residents would be criminals. If it were a POW camp, then they would be enemy soldiers being held under the rules of war. It has never really been decided which these men are, and therefore their legal standing has remained unclear.
War vs. Criminal Justice

The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror, and bringing Osama bin Laden and his followers to justice. Both made for good rhetoric. But they also were fundamentally contradictory. A war is not a judicial inquiry, and a criminal investigation is not part of war.

An analogy might be drawn from Pearl Harbor. Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense. As an act of war, the Japanese action fell under the rules of war as provided for in international law, the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Japanese pilots could not be held individually responsible for the lawful order they received. In the same sense, trying to bring soldiers to trial in a civilian court in the United States would make no sense. Creating a mission in which individual Japanese airmen would be hunted down and tried under the rules of evidence not only would make no sense, it would be impossible. Building a case against them individually also would be impossible. Judges would rule on evidence, on whether an unprejudiced jury could be found, and so on. None of this happened, of course — World War II was a war, not a judicial inquiry.

It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers.

International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.

The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such.
An Ambiguous Status

Extending protections to partisans following World War II was seen as a major concession. It was done with concerns that it not be extended so far that combatants of irregular forces could legally operate using their ability to blend in with surrounding civilians, and hence a requirement of wearing armbands. The status of purely covert operatives remained unchanged: They were not protected under the Geneva Conventions. Their status remained ambiguous.

During World War II, it was U.S. Army practice to hold perfunctory trials followed by executions. During the Battle of the Bulge, German commandos captured wearing U.S. uniforms — in violation of the Geneva Conventions — were summarily tried in field courts-martial and executed. The idea that such individuals were to be handed over to civilian courts was never considered. The actions of al Qaeda simply were not anticipated in the Geneva Conventions. And to the extent they were expected, they violated the conventions.

Holder’s decision to transfer Khalid Sheikh Mohammed to federal court makes it clear that Mohammed was not a soldier acting in time of war, but a criminal. While during times of war spies are tried as criminals, their status is precarious, particularly if they are members of an enemy army. Enemy soldiers out of uniform carrying out reconnaissance or espionage are subject to military, not civilian, justice, and frequently are executed. A spy captured in the course of collecting information is a civilian, particularly in peacetime, and normally is tried as a criminal with rules of evidence.

Which was Mohammed? Under the Geneva Conventions, his actions in organizing the Sept. 11 attacks, which were carried out without uniforms or other badges of a combatant, denies him status and protection as a POW. Logically, he is therefore a criminal, but if he is, consider the consequences.

Criminal law is focused on punishments meted out after the fact. They rarely have been preventive measures. In either case, they follow strict rules of evidence, require certain treatments of prisoners and so on. For example, prisoners have to be read the Miranda warning. Soldiers are not policeman. They are not trained or expected to protect the legal rights of captives save as POWs under the UCMJ, nor protect the chain of custody of evidence nor countless other things that are required in a civilian court. In criminal law, it is assumed that law enforcement has captured the prisoner and is well-versed in these rules. In this case, the capture was made without any consideration of these matters, nor would one expect such consideration.

Consider further the role of U.S. covert operations in these captures. The United States conducts covert operations in which operatives work out of uniform and are generally not members of the military. Operating outside the United States, they are not protected by U.S. law although they do operate under the laws and regulations promulgated by the U.S. government. Much of their operations run counter to international and national law. At the same time, their operations are accepted as best practices by the international system. Some operate under cover of diplomatic immunity but carry out operations incompatible with their status as diplomats. Others operate without official cover. Should those under unofficial cover be captured, their treatment falls under local law, if such exists. The Geneva Conventions do not apply to them, nor was it intended to.

Spies, saboteurs and terrorists fall outside the realm of international law. This class of actors falls under the category of national law, leaving open the question of their liability if they conduct acts inimical to a third country. Who has jurisdiction? The United States is claiming that Mohammed is to be tried under the criminal code of the United States for actions planned in Afghanistan but carried out by others in the United States. It is a defensible position, but where does this leave American intelligence planners working at CIA headquarters for actions carried out by others in a third country? Are they subject to prosecution in the third country? Those captured in the third country clearly are, but the claim here is that Mohammed is subject to prosecution under U.S. laws for actions carried out by others in the United States. And that creates an interesting reciprocal liability.
A Failure to Evolve

The fact is that international law has not evolved to deal with persons like Mohammed. Or more precisely, most legal discussion under international law is moving counter to the Geneva Conventions’ intent, which was to treat the franc-tireurs as unworthy of legal protection because they were not soldiers and were violating the rules of war. International law wants to push Mohammed into a category where he doesn’t fit, providing protections that are not apparent under the Geneva Conventions. The United States has shoved him into U.S. criminal law, where he doesn’t fit either, unless the United States is prepared to accept reciprocal liability for CIA personnel based in the United States planning and supporting operations in third countries. The United States has never claimed, for example, that the KGB planners who operated agents in the United States on behalf of the Soviet Union were themselves subject to criminal prosecution.

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Therefore — and now we move to the political reality — it is difficult to imagine how the evidence accumulated against Mohammed could enter a courtroom. Ignoring the methods of questioning, which is a separate issue, how can one prove his guilt beyond a reasonable doubt without compromising sources and methods, and why should one? Mohammed was on a battlefield but not operating as a soldier. Imagine doing criminal forensics on a battlefield to prove the criminal liability of German commandos wearing American uniforms.

In our mind, there is a very real possibility that Mohammed could be found not guilty in a courtroom. The cases of O.J. Simpson and of Jewish Defense League head Rabbi Meir Kahane’s killer, El Sayyid Nosair — both found not guilty despite overwhelming evidence — come to mind. Juries do strange things, particularly amid what will be the greatest media circus imaginable in the media capital of the world.

But it may not be the jury that is the problem. A federal judge will have to ask the question of whether prejudicial publicity of such magnitude has occurred that Mohammed can’t receive a fair trial. (This is probably true.) Questions will be raised about whether he has received proper legal counsel, which undoubtedly he hasn’t. Issues about the chain of custody of evidence will be raised; given that he was held by troops and agents, and not by law enforcement, the chances of compromised evidence is likely. The issue of torture will, of course, also be raised but that really isn’t the main problem. How do you try a man under U.S. legal procedures who was captured in a third country by non-law enforcement personnel, and who has been in military custody for seven years?

There is a nontrivial possibility that he will be acquitted or have his case thrown out of court, which would be a foreign policy disaster for the United States. Some might view it as a sign of American adherence to the rule of law and be impressed, others might be convinced that Mohammed was not guilty in more than a legal sense and was held unjustly, and others might think the United States has bungled another matter.

The real problem here is international law, which does not address acts of war committed by non-state actors out of uniform. Or more precisely, it does, but leaves them deliberately in a state of legal limbo, with captors left free to deal with them as they wish. If the international legal community does not like the latter, it is time they did the hard work of defining precisely how a nation deals with an act of war carried out under these circumstances.

The international legal community has been quite vocal in condemning American treatment of POWs after 9/11, but it hasn’t evolved international law, even theoretically, to cope with this. Sept. 11 is not a crime in the proper sense of the term, and prosecuting the guilty is not the goal. Instead, it was an act of war carried out outside the confines of the Geneva Conventions. The U.S. goal is destroying al Qaeda so that it can no longer function, not punishing those who have acted. Similarly the goal in 1941 was not punishing the Japanese pilots at Pearl Harbor but destroying the Japanese Empire, and any Japanese soldier was a target who could be killed without trial in the course of combat. If it wishes to solve this problem, international law will have to recognize that al Qaeda committed an act of war, and its destruction has legal sanction without judicial review. And if some sort of protection is to be provided al Qaeda operatives out of uniform, then the Geneva Conventions must be changed, and with it the status of spies and saboteurs of all countries.

Holder has opened up an extraordinarily complex can of worms with this decision. As U.S. attorney general, he has committed himself to proving Mohammed’s guilt beyond a reasonable doubt while guaranteeing that his constitutional rights (for a non-U.S. citizen captured and held outside the United States under extraordinary circumstances by individuals not trained as law enforcement personnel, no less) are protected. It is Holder’s duty to ensure Mohammed’s prosecution, conviction and fair treatment under the law. It is hard to see how he can.

Whatever the politics of this decision — and all such decisions have political dimensions — the real problem faced by both the Obama and Bush administrations has been the failure of international law to evolve to provide guidance on dealing with combatants such as al Qaeda. International law has clung to a model of law governing a very different type of warfare despite new realities. International law must therefore either reaffirm the doctrine that combatants who do not distinguish themselves from noncombatants are not due the protections of international law, or it must clearly define what those protections are. Otherwise, international law discredits itself.

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[goldcatt]

Except the actual confusion is not on my end. It is on yours.

Assuming the detainees were rightfully classified as "Enemy Combatants" in the first place, which is arguable on both sides, that classification applies to International law under the Geneva Convention. Not to US law under the Constitution. So "enhanced interrogation techniques" will not get anybody hauled into the Hague, but they don't waive the Due Process requirement of the Courts - civil OR military.

Nobody said they waived Due Process. What I DID say was that it raises the question of "WHAT process is due?" That was a correct statement (or question, as it were). It still is.

Anybody here know the rules of evidence for military tribunals and how they differ from those of the Federal Courts? Because that's what would be used if these folks weren't tried in civilian court - and while I don't know what those rules are, I do know they are based on the UCMJ - or rather the UCMJ is based on what can be admitted into evidence at tribunal. Which is what the military foresaw and why they wanted the UCMJ used from the beginning when these critters were interrogated. They should have been heeded.

I have no problem with military tribunals - as long as they're run with Due Process and by the book. No special courts to clean up special CIA bullshit.

Which all begs the question you have ducked. "WHAT process IS 'due'?"

Perhaps I wasn't clear. The process due them is the process due either as a defendant before a standard military tribunal, or the process due them as a defendant before a standard civilian court, take your pick. I really don't care either way as long as they get a standard trial according to the pre-existing rules of that venue.

But the "Enemy Combatant" label lost all meaning the moment they were brought to soil subject to the jurisdiction of US law and the Constitution - which does not allow detention indefinitely without trial and does not grant an exception for those classified under International law as "Enemy Combatants". POW's, yes. But Not Enemy Combatants. So you've got to pick your poison, military or civilian, and I submit the result - excluded key evidence - would be the same either way.

 

[Liability]

Except the actual confusion is not on my end. It is on yours.

Assuming the detainees were rightfully classified as "Enemy Combatants" in the first place, which is arguable on both sides, that classification applies to International law under the Geneva Convention. Not to US law under the Constitution. So "enhanced interrogation techniques" will not get anybody hauled into the Hague, but they don't waive the Due Process requirement of the Courts - civil OR military.

Nobody said they waived Due Process. What I DID say was that it raises the question of "WHAT process is due?" That was a correct statement (or question, as it were). It still is.

Anybody here know the rules of evidence for military tribunals and how they differ from those of the Federal Courts? Because that's what would be used if these folks weren't tried in civilian court - and while I don't know what those rules are, I do know they are based on the UCMJ - or rather the UCMJ is based on what can be admitted into evidence at tribunal. Which is what the military foresaw and why they wanted the UCMJ used from the beginning when these critters were interrogated. They should have been heeded.

I have no problem with military tribunals - as long as they're run with Due Process and by the book. No special courts to clean up special CIA bullshit.

Which all begs the question you have ducked. "WHAT process IS 'due'?"

Perhaps I wasn't clear. The process due them is the process due either as a defendant before a standard military tribunal, or the process due them as a defendant before a standard civilian court, take your pick. I really don't care either way as long as they get a standard trial according to the pre-existing rules of that venue.

But the "Enemy Combatant" label lost all meaning the moment they were brought to soil subject to the jurisdiction of US law and the Constitution - which does not allow detention indefinitely without trial and does not grant an exception for those classified under International law as "Enemy Combatants". POW's, yes. But Not Enemy Combatants. So you've got to pick your poison, military or civilian, and I submit the result - excluded key evidence - would be the same either way.

The process may or may not include the "suppression" of evidence seized from an illegal enemy combatant.

Let's stipulate this much: For treating a real (mere) criminal in exactly the same way that this al qaeda fucker got treated (even if it falls short of a real-world meaningful and honest definition of "torture"), it is clear that his statements and the derivative USE of his statements would get suppressed. So the question becomes, is it the same in the case of an illegal enemy combatant getting treated to a "trial" under the UCMJ? I suggest that it isn't the same and it damn well should NOT be the same.

Under President Bush, by the way, these bastards were NOT brought to American soil. Frankly, it shouldn't matter even if they had been. Such a hyper-technical reading of the law is absurd. It took President Obama and Attorney General Holder to bring these assholes to American CIVILIAN COURTS of LAW. And that was just one of their MANY serious errors of judgment.

 

[kwc57]

President Bush is not the President giving us any clusterfuck. That accolade goes entirely to the idiot President presently infesting the Oval Orifice.

Bullshit. I won't argue Obama's merits....because there aren't any to argue. Bush created this monster, ignored it and left it for the next guy to sort out......whoever he or she might have been. Yeah, it's Obama's to deal with NOW, but it is because Bush wouldn't deal with it THEN.

You are not exactly what we like to call "correct."

We do not know what "methods" were used to extract the information from this "criminal defendant." Maybe it was waterboarding in which case it isn't fucking "torture," in which case nothing done by the Bush Administration is any part of the problem.

But the fact that the "defendant" is being subjected to our civilian justice system as a mere "criminal" is in and of itself sufficient to disprove your contention.

Judge Kaplan is not "wrong," nonetheless. As long as the "defendant" is being tried as a mere criminal in our civilian court of justice, he is entitled AS a matter of LAW to the protections we accord to those accused of crimes.

Also, it was noted earlier that even a military tribunal would have to accord to the accused some "due process." While that is certainly true, the question is not resolved with that neat little phrase. The question becomes "what process IS due to this guy, under the circumstances, in the proper forum?" It may not entail depriving the government of the use of the information he gave to the government, for example, for a variety of reasons.

You missed my point. Bush could have settled all of this during his term. He took a pass and left for someone else to solve. That someone else is Obama. Most Americans could read the writng on the wall......after Bush, a conservative would not be sitting in the Whitehouse for at least four more years. The folks around him should have insisted on getting the ball rolling on how to handle the Gitmo folks instead of leaving it to their opposition.......unless they did it to stick it to the opposition when they took power. In which case it was smart, unethical, but smart.

 

[Liability]

Bullshit. I won't argue Obama's merits....because there aren't any to argue. Bush created this monster, ignored it and left it for the next guy to sort out......whoever he or she might have been. Yeah, it's Obama's to deal with NOW, but it is because Bush wouldn't deal with it THEN.

You are not exactly what we like to call "correct."

We do not know what "methods" were used to extract the information from this "criminal defendant." Maybe it was waterboarding in which case it isn't fucking "torture," in which case nothing done by the Bush Administration is any part of the problem.

But the fact that the "defendant" is being subjected to our civilian justice system as a mere "criminal" is in and of itself sufficient to disprove your contention.

Judge Kaplan is not "wrong," nonetheless. As long as the "defendant" is being tried as a mere criminal in our civilian court of justice, he is entitled AS a matter of LAW to the protections we accord to those accused of crimes.

Also, it was noted earlier that even a military tribunal would have to accord to the accused some "due process." While that is certainly true, the question is not resolved with that neat little phrase. The question becomes "what process IS due to this guy, under the circumstances, in the proper forum?" It may not entail depriving the government of the use of the information he gave to the government, for example, for a variety of reasons.

You missed my point. Bush could have settled all of this during his term. He took a pass and left for someone else to solve. That someone else is Obama. Most Americans could read the writng on the wall......after Bush, a conservative would not be sitting in the Whitehouse for at least four more years. The folks around him should have insisted on getting the ball rolling on how to handle the Gitmo folks instead of leaving it to their opposition.......unless they did it to stick it to the opposition when they took power. In which case it was smart, unethical, but smart.

You repeat your empty claim but again fail to say whatever it is you seem to imagine you mean.

President Bush did not pass anything on to his successor that he could have "settled." That is an absolutely meaningless assertion you make.

What are you talking about?

President Bush dealt with the mess created by al qaeda. It is true that he did not -- in the last seven and 3/4 years of his terms of Office -- eradicate al qaeda. But that's just the nature of that enemy. Gee. Awfully sorry they weren't obliging enough to lay down and fucking just die.

 

[Liability]

10 U.S.C. § 949(b)(2)(C) states that “[a] statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.” Section 948r, while excluding evidence obtained by torture, permits the admission of statements where the existence or degree of coercion is in dispute based on findings of reliability and probative value, and where such admission is warranted in the interests of justice.

-- excerpted from a Response of the Government in a different enemy combatant case: http://www.defense.gov/news/D-094_Khadr_Response_to_Motion_to_Suppress.pdf

The entire Response* is worth wading through, but the excerpt does substantiate my point that the process "due" to one of these fuckers is dependent on things like WHETHER or not they are in a Court of LAW of in a military tribunal.

__________________
* UNITED STATES OF AMERICA v. OMAR KHADR

Government Response
To the Defense’s Motion to
Suppress Statements Allegedly Procured
Using Torture, Coercion and Cruel,
Inhumane and Degrading Treatment

12 December 2008

 

[goldcatt]

Except the actual confusion is not on my end. It is on yours.



Nobody said they waived Due Process. What I DID say was that it raises the question of "WHAT process is due?" That was a correct statement (or question, as it were). It still is.



Which all begs the question you have ducked. "WHAT process IS 'due'?"

Perhaps I wasn't clear. The process due them is the process due either as a defendant before a standard military tribunal, or the process due them as a defendant before a standard civilian court, take your pick. I really don't care either way as long as they get a standard trial according to the pre-existing rules of that venue.

But the "Enemy Combatant" label lost all meaning the moment they were brought to soil subject to the jurisdiction of US law and the Constitution - which does not allow detention indefinitely without trial and does not grant an exception for those classified under International law as "Enemy Combatants". POW's, yes. But Not Enemy Combatants. So you've got to pick your poison, military or civilian, and I submit the result - excluded key evidence - would be the same either way.

The process may or may not include the "suppression" of evidence seized from an illegal enemy combatant.

Let's stipulate this much: For treating a real (mere) criminal in exactly the same way that this al qaeda fucker got treated (even if it falls short of a real-world meaningful and honest definition of "torture"), it is clear that his statements and the derivative USE of his statements would get suppressed. So the question becomes, is it the same in the case of an illegal enemy combatant getting treated to a "trial" under the UCMJ? I suggest that it isn't the same and it damn well should NOT be the same.

Under President Bush, by the way, these bastards were NOT brought to American soil. Frankly, it shouldn't matter even if they had been. Such a hyper-technical reading of the law is absurd. It took President Obama and Attorney General Holder to bring these assholes to American CIVILIAN COURTS of LAW. And that was just one of their MANY serious errors of judgment.

A US military base on leased soil has been subject to US jurisdiction and considered US soil for all applicable purposes of the law for almost 100 years, Liability. Bush's argument against it was bogus, it was a delaying tactic at best. The military wanted nothing to do with it, they knew their own law covering their own bases - which is why they screamed long and loud, and why CIA was sent in to do the interrogating. "Torture" or not under the law is irrelevant, the techniques used do not conform to the standards required under either the UCMJ or civilian Federal rules of evidence. And they knew it.

Did you stop to think that maybe the military doesn't want the circus and the inevitable conclusion on their watch, and that's why they're being tried in District Court? If I were the military, I wouldn't want the embarrassment of looking like the idiots either when they were in fact proven right.

Forget the term "Enemy Combatant" when used in the context of the Justice system, either civilian or military. There are no different rules. It's an International law exception to the Geneva Convention for captured non-military combatants, not a designation under American law. If you contend otherwise, please cite the source establishing "Enemy Combatants" as a separate class of defendant entitled to a lower standard of Due Process in US courts under US law - NOT Geneva.

 

[goldcatt]

10 U.S.C. § 949(b)(2)(C) states that “[a] statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.” Section 948r, while excluding evidence obtained by torture, permits the admission of statements where the existence or degree of coercion is in dispute based on findings of reliability and probative value, and where such admission is warranted in the interests of justice.

-- excerpted from a Response of the Government in a different enemy combatant case: http://www.defense.gov/news/D-094_Khadr_Response_to_Motion_to_Suppress.pdf

The entire Response* is worth wading through, but the excerpt does substantiate my point that the process "due" to one of these fuckers is dependent on things like WHETHER or not they are in a Court of LAW of in a military tribunal.

__________________
* UNITED STATES OF AMERICA v. OMAR KHADR

Government Response
To the Defense’s Motion to
Suppress Statements Allegedly Procured
Using Torture, Coercion and Cruel,
Inhumane and Degrading Treatment

12 December 2008

Of course it does. Because a military tribunal already has different rules and requirements under the COTUS and the UCMJ. Those are the pre-existing rules I was talking about previously.

But where does it state the mere labeling of an individual as an "Enemy Combatant" changes those rules?