The Day Habeas Corpus Died

[Imran Siddiqui]

Originally posted by DinoDoc
How are habeus corpus rights handled under the UCMJ? This is going to be a military trial after all so that should be the standard used.

I agree... I was just curious as to why it would be a "foolish mistake" to try habeus reviews in civilian courts.

[dannubis]

Originally posted by SpencerH


Innocent people are wrongfully incarcerated in every country. So long as there is a mechanism whereby they may challenge that (and there is one), I see no problem nor any need to clog the civilian court system with bull**** legal cases brought by our enemy.

As for being an american, I'm not, but thanks for the compliment.

And that mechanism worked quite well as we all know...

So go ahead take away their only chance of escaping the round of "panic football" played by the US administration and the pentagon 5 years ago. We can not have arabs clug up our precious civilian court system now can't we...

[SpencerH]

Originally posted by Imran Siddiqui


Why would it be a foolish mistake to try foreign enemy combatants in civil courts via habeus corpus?

Because of the nature of the evidence against them. Some/most/all of the evidence will be classified material which means that we can either release sensitive information to our enemy (which is what happened during the trials of the first WTC bombers) or we can refuse to use that material and be forced to release terrorists for lack of evidence (which is what the brits were forced to do a few years ago when their laws became subject to the european courts - there was an interesting committee meeting on C-span a few weeks ago that included an MI5 officer who was giving the brit perspective on their problems in this regard). They now have a law which allows a judge to determine whether the prosecutions intel-sensitive material can be protected but still used (I think that's where we got the idea for the current portion of the detention legislation from).

[SpencerH]

Originally posted by Ramo


That's the point - there isn't a meaningful mechanism. There is no presumption of innocence in the Combat Status Review Tribunal. Enemy combatants do not get lawyers. Hearsay evidence and testimony derived through coercion (i.e. torture) are admissible.

How can there be a "presumption of innocence"? We're not discussing a crime. One is not guilty of being an enemy combatant. One is, or one is not, an enemy combatant.

If the terrorists followed the Geneva Conventions they would wear identifiers and there wouldnt be any question about their status. Since they dont use identifiers, however, we have to use evidence from other sources.

Throughout the history of the european wars of the 20th century enemy combatants (wearing uniforms) were treated in one way while spies and saboteurs were treated another. Clearly, we are facing a new, more broad, definition of "enemy combatant" but I see no reason to treat these new style of "enemy combatants" as 'criminals'. We either treat them as enemy combatants or we treat them as spies.

As for the falsely accused goatherders, I agree that we need to minimize the chances of that occuring.

Again, what Congress has just said is that the President has the power to arbitrarily detain anyone he wants.

Rubbish

[Imran Siddiqui]

Originally posted by SpencerH
Because of the nature of the evidence against them. Some/most/all of the evidence will be classified material which means that we can either release sensitive information to our enemy (which is what happened during the trials of the first WTC bombers) or we can refuse to use that material and be forced to release terrorists for lack of evidence (which is what the brits were forced to do a few years ago when their laws became subject to the european courts - there was an interesting committee meeting on C-span a few weeks ago that included an MI5 officer who was giving the brit perspective on their problems in this regard). They now have a law which allows a judge to determine whether the prosecutions intel-sensitive material can be protected but still used (I think that's where we got the idea for the current portion of the detention legislation from).

Ah, so this is the whole they can't contest the evidence against them idea. A horrible idea. You can't have a fair trial unless the defense gets to contest the evidence. To say that we have evidence against you, but you can't see it and can't defend yourself against you is very banana republic.

So I think it is silly to claim that it is foolish to have these trials in civilian courts. If they can have the evidence against them withheld in military courts, then I say it is ESSENTIAL that they get their trials in civilian courts. Being able to refute the evidence against you has been a central pillar of our law for centuries, going back to British common law.

[SpencerH]

Originally posted by Imran Siddiqui


Ah, so this is the whole they can't contest the evidence against them idea. A horrible idea. You can't have a fair trial unless the defense gets to contest the evidence. To say that we have evidence against you, but you can't see it and can't defend yourself against you is very banana republic.

So I think it is silly to claim that it is foolish to have these trials in civilian courts. If they can have the evidence against them withheld in military courts, then I say it is ESSENTIAL that they get their trials in civilian courts. Being able to refute the evidence against you has been a central pillar of our law for centuries, going back to British common law.

I agree that it's a very grey "grey area" that needs to be watched closely. OTOH I refuse to support crippling our ability to catch and kill these scum when we can have impartial judges determine the veracity of the material in question. That seems to me to be a workable alternative.

[Imran Siddiqui]

Originally posted by SpencerH
I agree that it's a very grey "grey area" that needs to be watched closely. OTOH I refuse to support crippling our ability to catch and kill these scum when we can have impartial judges determine the veracity of the material in question. That seems to me to be a workable alternative.

Judges deciding the veracity of the evidence without allowing the defense to refute it? Why should we even have a pretense of a fair trial after that? Just admit its rigged and get on with it.

[SpencerH]

Originally posted by Imran Siddiqui


Judges deciding the veracity of the evidence without allowing the defense to refute it? Why should we even have a pretense of a fair trial after that? Just admit its rigged and get on with it.

So you disagree with trials by a judge without a jury?

[Imran Siddiqui]

Originally posted by SpencerH
So you disagree with trials by a judge without a jury?

Um No... I disagree with the fact that the defense doesn't get to see the evidence they are being charged with, and thus doesn't have the ability to refute such evidence. I thought I was clear on that point.

[Ramo]

How can there be a "presumption of innocence"? We're not discussing a crime.

The gov't is detaining "enemy combatants" for hostile actions. You know, the actions that make someone any enemy combatant. Say, conspiring to committ an act of terror.

Rubbish

If the gov't calls you an indefinite combatant, and unless you can prove your innocence without the use of legal aid, without access to the evidence against you (which could very well could have been acquired through torture), it is the gov't's right to detain you. CSRT's are show trials, only nominally protecting rights. Detention doesn't become much more arbitrary than this.

[dannubis]

Thank you !

[SpencerH]

Originally posted by Imran Siddiqui


Um No... I disagree with the fact that the defense doesn't get to see the evidence they are being charged with, and thus doesn't have the ability to refute such evidence. I thought I was clear on that point.

What if we provide a team of security-cleared lawyers to act as devils advocate for the defendant in front of the determining judges?

[Elok]

On a more serious note than my last post, while this is a rather troubling precedent, the thread title is a tad melodramatic IMO. Bush has terrible approval ratings, and I don't think he has much support among the military either. If anyone's implying that Bush is going to use this as an excuse for baseless arrests (e.g. of political opponents), I personally doubt it. Well, he might be stupid enough to try it, but there'd be trouble pretty quick since he's got no meaningful control over the media. He's on thin ice as it is.

What's more troubling about this is what was already old news, at least to me: both political parties are total tools.

[Ramo]

It's not melodramatic. The Republicans in Congress have just killed habeas corpus. If Dear Leader wills it, you have no meaningful right to challenge your detention; it's as simple as that. That's a very different thing from saying that there' are going to be mass arrests of Democrats in the near future, and I certainly never implied that.

[lord of the mark]

Heres the text of the bill

http://thomas.loc.gov/cgi-bin/query/D?c109:1:./temp/~c109xk8qLw::