Bob Barr is right about the trials

[Sleeping in EQ]

From Barr's Nov. 13th statement:

"Trying these individuals in federal courts for the heinous acts they allegedly committed, is by no means treating them 'as common criminals,' as Senator [John] Cornyn inaccurately describes such process. Those federal courts which Senator Cornyn impliedly disparages have in fact and historically, tried, convicted and sentenced to appropriately lengthy prison terms, individuals who have perpetrated serious terrorist acts on our country and our citizens. It is mystifying why Senator Cornyn today has so little faith in the ability of federal prosecutors, federal agents, federal judges, and federal juries, to handle such cases."

[UtahDan]

I think the difficulty lies in the fact that you treat a non-citizen who you have apprehended in a foreign country during war differently than you treat a criminal suspect (I'm saying that practically this occurs). This man has been treated as a war prisoner from the word go and has been interrogated and tortured. We can agree or disagree about whether that was right or wrong, but the point is we have not been building a criminal case against him during that time period, nor have we observed constitutional protections such as giving miranda warnings, not coercing confessions, not torturing, etc. as we would if we had the primary objective of prosecuting him.

In federal court, however, he will have all of those right and they will lead to the exclusion, at a minimum, of every statement he has ever made subsequent to his capture. Once in custody, the government was focused on what more it could learn from him, not trying to maintain a crime scene or preserve evidence. Maybe they did those things too, I don't know, but I suspect that was less of a concern. So the state of the government's case may not be great. It isn't what it would have been had we simply put him in a federal prison to begin with and accorded him all the rights of a citizen.

I guess the question is, does the government when it apprehends an enemy combatant have to make the decision, then and there, that if it is going to treat him as a war prisoner and try to extract information from him that this means it may have to let him go some day because ultimately he will be in a federal court where the things which are done to extract information will help him because they violate his rights. Must it commit at that moment to treating the matter as a criminal investigation and collect evidence, interview witnesses, take statements, etc. when really it is trying to perform a military function at that point rather than a law enforcement function (and the two things are far from identical).

I trust the system, the problem I foresee is that in the case of an enemy combatant (or whatever you want to call him, a non-citizen apprehended in a foreign land in war time) we made the choice in the past not to treat him as a criminal and now we will be faced with the consequences of that choice. Mark my words that one of these guy will walk. This is why I think you have to either treat them as a war prisoner and give them a military tribunal or some lesser form of due process, or treat them as a criminal from the beginning with all the attendant due process which is second to none in the world.

If it is to be the latter, will all future captives be put in federal prison right away and not interrogated in the military sense? Or will we make the judgment that the risk of a future acquittal is worth the reward of the information such interrogation might reveal. It seems like we shouldn't have to pick one of those alternatives. For me it is a more interesting policy question than it is a moral one.

[thesaint258]

It seems like we shouldn't have to pick one of those alternatives.

I agree. I don't think either way totally works with terrorists. I don't think the criminal model works because of the way war is conducted and because of jurisdictional issues. On the other hand, all of our laws of war have been built around two or more countries going to war, not a country versus a group. I think the best option is to create a third way of dealing with people captured in wars between countries and groups. I'm not sure what form that would take. It could be that you use federal courts with a more relaxed standard, military tribunals that are more open, or specially created national security courts. I haven't given a ton of thought to the form that a third option would take, but it's one I think we should start examining, especially if these kinds of conflicts are supposed to be what we'll find ourselves in over the next few decades.

[Surfah]

Bob Barr is wrong. Levin, thesaint, and UtahDan have all outlined why in the few threads covering this topic.

[Sleeping in EQ]

I think the difficulty lies in the fact that you treat a non-citizen who you have apprehended in a foreign country during war differently than you treat a criminal suspect (I'm saying that practically this occurs). This man has been treated as a war prisoner from the word go and has been interrogated and tortured. We can agree or disagree about whether that was right or wrong, but the point is we have not been building a criminal case against him during that time period, nor have we observed constitutional protections such as giving miranda warnings, not coercing confessions, not torturing, etc. as we would if we had the primary objective of prosecuting him.

In federal court, however, he will have all of those right and they will lead to the exclusion, at a minimum, of every statement he has ever made subsequent to his capture. Once in custody, the government was focused on what more it could learn from him, not trying to maintain a crime scene or preserve evidence. Maybe they did those things too, I don't know, but I suspect that was less of a concern. So the state of the government's case may not be great. It isn't what it would have been had we simply put him in a federal prison to begin with and accorded him all the rights of a citizen.

I guess the question is, does the government when it apprehends an enemy combatant have to make the decision, then and there, that if it is going to treat him as a war prisoner and try to extract information from him that this means it may have to let him go some day because ultimately he will be in a federal court where the things which are done to extract information will help him because they violate his rights. Must it commit at that moment to treating the matter as a criminal investigation and collect evidence, interview witnesses, take statements, etc. when really it is trying to perform a military function at that point rather than a law enforcement function (and the two things are far from identical).

I trust the system, the problem I foresee is that in the case of an enemy combatant (or whatever you want to call him, a non-citizen apprehended in a foreign land in war time) we made the choice in the past not to treat him as a criminal and now we will be faced with the consequences of that choice. Mark my words that one of these guy will walk. This is why I think you have to either treat them as a war prisoner and give them a military tribunal or some lesser form of due process, or treat them as a criminal from the beginning with all the attendant due process which is second to none in the world.

If it is to be the latter, will all future captives be put in federal prison right away and not interrogated in the military sense? Or will we make the judgment that the risk of a future acquittal is worth the reward of the information such interrogation might reveal. It seems like we shouldn't have to pick one of those alternatives. For me it is a more interesting policy question than it is a moral one.

This is a fancy way of saying "Let Obama eat cake."

I'm not buying it.

[JohnnyLingo]

This is a fancy way of saying "Let Obama eat cake."

I'm not buying it.

Are you kidding? That's your rebuttal?

[Sleeping in EQ]

Are you kidding? That's your rebuttal?

No, that's not my rebuttal. Does one need a rebuttal? I certainly don't.

But that doesn't change the fact that what I said is true.