Protect and Defend

Welcome to my blog, Protect and Defend. You don’t have to understand me. You only have to agree with me. I can live with losing the good fight, but I can not live with not fighting that good fight at all. - Publius

Tuesday, September 19, 2006

A question posed

Recently Betmo asked me my opinion on “detaining people indefinitely without charge? Muslim or not.”

I think the question is whether or not I support detaining suspected terrorists without some form of trial. I will say my original stance on this issue was, “Let them rot.” If we don’t detain them and let them go back to their home countries they will most likely try again.
But my opinion has changed somewhat. I do not think they should have a trial by jury because they are not American citizens and I am unaware of how you could assemble a “jury of their peers.” I also do not think the terrorists are subject to the Geneva Convention because they are not captured soldiers. Soldiers wear uniforms and fight in battles, they do not pass themselves off as part of the populace and attack actual soldiers with terror methods. However, I am also against some sort of secret trial where we do not know the results, what these people did, and what the outcome of their trial was. My opinion changed after reading an op-ed piece in Newsweek. I think they should be brought up on trial, but in a separately created system where decisions are made by a judge only and not by jury or tribunal. We should show the world that in this country the rule of Law still stands and that people are not convicted or detained without a trial. Those found guilty of terrorism should be executed and those found not-guilty should be released back to the government of their home country.
I am not a lawyer and I have not studied law, so I am unsure of what, if any, legal ramifications or procedures would be necessary to accomplish this. But those found guilty of terrorists acts should be executed and the non-guilty should be returned.

11 Comments:

Blogger Alec said...

Well, part of the problem is that not all of those detained were foreigners. Some were American citizens. I have not read Hamdan, the most recent Supreme Court case, but, as far as American citizens are concerned, I am in agreement with Justices Scalia and Stevens: either Congress suspends the writ of habeas corpus, or they charge American citizens detained without trial.

As far as indefinite detentions abroad, there are different issues there. But if the detention of the AP photographer is any indication, this practice is being abused for political purposes and I think that it must stop.

Tue Sep 19, 02:31:00 AM  
Blogger betmo said...

see- my problem is- we had a similar situation in vietnam- and handled that problem within the confines of the law. the other problem i have is that many of these folks were simply rounded up and placed in these prisons with no charges and no recourse. terrorist acts and 'terrorism'- whatever that means- shouldn't change america. we are either a free society or we are not. if we are not- then we cease to be america. then the 'terrorists' have won anyway haven't they? we can keep ourselves safe without these power grabbing means. we can keep ourselves safe without the erosion of our civil liberties. we haven't been told that because the folks in power right now want to keep their power. that's really all there is to it. what this country is right now- is not the america i have known and loved all of my life. it is becoming unrecognizable.

Tue Sep 19, 09:21:00 AM  
Blogger Rogue Mariner said...

Well said Betmo.

Tue Sep 19, 12:51:00 PM  
Blogger Publius said...

There are a few problems with your statement here Betmo, and I think this is something that we have discussed on here before.
First, the terrorists have not already won if we suspend some civil liberties or if people are detained indefinitely without a trial. We have already done that, and the terrorists are not dancing in the streets because they have already somehow won. For them, they have not won until we are either all dead or all have converted to Islam. So they are a long way away from winning. I don’t think they care either way about whether we detain people without cause or not, or if we change out society because of them. Think about all the measures that have been “changed” for you to board a plane. We changed our society there too, but it does not mean the terrorists won.
Also, what is this great and perfect country you seem to remember? This country stole land for Native Americans or killed them, we had slavery, Jim Crow laws, segregation, we put Japanese Americans in internment camps during World War II, we discriminated against Jews, the Irish, and Italians, we supported Saddam against the Iranians, we supported the Taliban against the Soviet Union, and we have done a host of other things that you would not agree with. If anything, this country is not becoming unrecognizable, it is exactly the country that it has always been.

Alec, you are the law student so you would know more than I do about how law practices influence these decisions. But, what Americans citizens are in Gitmo right now? Also, if you recall, 3 of the 9-11 Hijackers were given American citizenship under the 1986 Amnesty Bill, so I would want to know how “American” some of the people are who have been detained.

Tue Sep 19, 01:22:00 PM  
Blogger quakerdave said...

There's a simpler solution, perhaps. Call the enemy what he wants to be called: soldiers. You want to lock them up? Declare war. Treat the enemy as soldiers, not "terrorists," not "enemy combatants," not whatever. They have declared war on us, we have called what we're doing a "war."

So follow the rules. If you're captured, you're a POW, and you get treated like one. If you're not one of those, then you're a member of a criminal organization, and you should be handled as one of those.

The trouble is that The Empire wants to make this up as they go along, and it's going to cost us all our freedom.

Tue Sep 19, 04:55:00 PM  
Blogger betmo said...

publius- i agree with what quaker dave has said. as for the country i am talking about- it has never been perfect. you may want to give up your civil liberties in the name of security but i do not. america stands for a set of ideals. those ideals are that we are an open and free society. according to bushian rhetoric- these 'terrorists' want to take away our freedoms and way of life. his words. the way i see it- our own government has done that for the 'terrorists.' you don't think that they care one way or another whether 13,000 people are detained without charges and possibly tortured? i am going out on a limb here and say that i bet that they care as much as we would if the situation was reversed. there isn't any way for these folks to 'win' in the conventional warfare way. bin laden said that he wanted to bankrupt our country. he wants us to be scared. if we cease to stand for what our constitution has stood for for over 200 years- i'd say that he and his ilk most certainly have won. go ahead and keep waging your war against the illegal alien hordes that apparently are taking over america. i am going to work on getting my civil liberties back. obviously, we have different priorities as to what needs to change in america.

Tue Sep 19, 06:30:00 PM  
Blogger Publius said...

QD, I can see the logic in your argument but I do not know how it will work. If the US captures a terrorist in Afghanistan from Saudi Arabia, such as Osama, is he a Saudi “soldier” or an Afghan “soldier?” If a terrorists blows up a church or mosque, can they be called a soldier?
I don’t think the wording works in this situation because these people do not represent a country but an ideal or a religion. Rather than trying to create a way to classify these people, I think it would be better to create a way to deal with them. I think they should be brought to trial because then we can show the world that whereas Muslims will execute infidels, we try and sentence those who commit violent acts. We are not fighting soldiers, we are fighting a criminal organization that uses terror and hate as an excuse to commit crimes. Perhaps using the same rules that cover the Klan and other hate groups would be appropriate here.

I am still looking towards alec, the only resident lawyer in training here for some clarification.

Tue Sep 19, 09:48:00 PM  
Blogger Publius said...

Betmo, I think you might have misunderstood what I was saying there. First, I wanted to make the point that this country has made many bad decisions in the past, and it will continue to make more bad decisions. But what separates this country from other countries, is that normally, we will eventually correct that mistake. But don’t think that we have not made plenty in the past.
Second, I don’t like the fact that the government might be listening to my phone calls, or reading my emails, or that they might have looked at this blog and traced the IP address of where the posts are being made from to determine who I am and where I am. But, I assume that once they figure I am no danger to America that they will move on to those who are. Maybe I am naïve, but I just don’t think I am a threat to the United States.
Third, I am against detaining American citizens for no reason, or holding them without cause or explanation. If they are not guilty, let them go and if they are guilty of something or if there is reason to believe they are, then they should be tried.
We have no difference in opinions on civil liberties in this country. Our difference is where you and I prioritize this problem. But, I see how illegal immigration has an impact on me and those I care about, and it hits closer to home, than government wiretapping or detaining people. So the one issue means more to me than the other.
And when you think about it this way, the terrorists do not have ICBMs, battleships, long range bombers, or a military that can invade us, and instead they have to come here, and often stay here illegally, the issue of wiretaps would not be so important if there were no terrorists here in this country. If there are none here, we don’t have to worry and there is no reason to tap people’s phones or email. In a sense, my priority kills two birds with one stone.
Finally, the terrorists want to do more than just change our society. They literally want to kill us. If all they wanted to do was make us scarred and make us change our routines, well then mission accomplished. I want to go back to Europe, but I am definitely not going to go through London again. And I don’t know if I will ever fly across the country again either, because those are bigger planes and carry more fuel. I went to Philly about two months ago, and there was a part of me that was nervous when I had to go in a tunnel that was underwater because if it blew up while I was in there, I would be dead either from the explosion or from being underwater.
But, I don’t think the terrorists are happy now just because I get nervous when I travel or because the government taps our phones. So I disagree with the President, the terrorists don’t want to just take away our freedoms and change our way of life, they want to end our life to take away all of our freedoms. Remember, the Declaration of Independence purposely put Life in front of Liberty or the Pursuit of Happiness, because you can’t have the second two without the first.

Tue Sep 19, 10:12:00 PM  
Blogger Alec said...

The problem is that there is not a great deal of historical precedent on some of these issues.

I wrote a paper on the enemy combatants issue with respect to American detainees. The Court's holding in Hamdi was very, well, creative. At a minimum, the detainees had to have access to a neutral and impartial tribunal to challenge their classification. Beyond that, it was unclear exactly what was required. This was also a compromise vote, probably designed to prevent the more extreme position of Justice Thomas from controlling.

Hamdan presents different issues. The Hamdan court found that the procedures proposed for trying a Yemeni national violated both the Code of Military Justice (with which I am not very familiar) and the Geneva Conventions. Justice Kennedy, the fifth vote, did not feel there was any need to reach the issue of the validity of conspiracy charges (conspiracy is an exception to the hearsay rule) because the commission itself violated both military procedures and the Geneve Conventions.

This is from the opinion, the parts of the commission originally constituted by Bush that the majority took issue with:

"The commission's procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to "close." Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other "protected information," so long as the presiding officer concludes that the evidence is "probative" and that its admission without the accused's knowledge would not result in the denial of a full and fair trial. Pp. 49-52."

So, in other words:

1. The accused and his chosen counsel might, at the discretion of the presiding officer, have no opportunity to examine the evidence.

2. Even the accused's military counsel might be prevented from disclosing material presented to him, by the presiding officer.

3. Probative evidence, by a "reasonable person" standard, is admissible. This is where the problem of, say, evidence gained under torture comes into play.

This is not in line with standard military procedures (hence the opposition of Senator Graham, among others). It boils down to the government saying "Trust us." Very much like Kafka, or practices employed by authoritarian regimes.

As to enemy combatants, case law appears to be in flux. The executive branch, operating with the authority of Congress, has a lot of discretion in foreign matters. Off the top of my head I cannot think of anything justiciable. The relatives of people being imprisoned may be able to sue under the Alien Tort Claims Act, but I am uncertain what kind of relief that Act would permit, beyond monetary compensation.

In other words, the state of the law is in flux, but moderate-left positions tend to be favored.

Wed Sep 20, 01:15:00 AM  
Blogger betmo said...

i think to some degree you are naive to think that the government is benignly gathering information. do i think i pose a threat to america? no- put i may pose a threat down the line to a political party or ideology. where do we draw the line? politicians are not inherently good. we have to get over our irrational fears and look to practical long term approaches to assaults on our country- that don't involve erosion of our civil liberties. the problem with this crew is that they have knee jerk reactions to everything and band aid the issue instead of putting some real thought into a problem. i don't see any difference in the way we treat americans versus any other human being on this planet. the most heinous murderers and rapists in this country get a fair trial and know the charges levelled against them. why should any other person on the planet not get the same respect and dignity? most of these people have done nothing. that is the point.

Wed Sep 20, 09:53:00 AM  
Blogger Publius said...

Alec, thank you for some explanations, even if the explanation was that they have no idea what they are doing either.
Betmo, are you concerned that you may someday pose a threat to A political party or ideology or do you have something or someone in mind? I don’t think politicians are inherently bad, in fact even those I disagree with I can still look at with respect because they are dedicating their lives to public service. Look at someone who I really don’t agree with like Edward Kennedy, he most likely makes about $200,000 a year as a politician, and although I doubt he needs the money, how much do you think he could make if he gave up politics tomorrow and just began giving speeches or became a political commentator? No, I think that politicians become politicians and stay politicians because they believe they are doing good work. Sure there are some bad apples in the bunch, but don’t judge the 12 Apostles by Judas.
But, I agree with you that the terrorists should be given a trial. I just don’t think it is possible to give them a jury trial if they are not American citizens.

Wed Sep 20, 09:49:00 PM  

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