The procedures are defined in this law. No, I wasn’t referring to information kept from the defense (if that information were real, they’d know it anyway, right?), but to information that the government is keeping restricted from broader public knowledge.
IIRC, the prosecution did not require the use of classified information anyway.
You’re assuming that the only reason we exclude evidence is because of its probative value. That assumption is incorrect. We might exclude evidence because of the institutional effects of doing so (preventing search without warrants, or encouraging people to talk openly with their doctors). But those institutional rules make little sense here. The most relevant of these kinds of rules are those making inadmissible interrogations that occurred without lawyers. Part of the rationale of this rule is a blanket way to prevent coercive interrogation. But it isn’t the case that every such interrogation is coercive, so you end up with a lot of confessed information that is inadmissible even though freely offered.
And it isn’t just a question of evidence. There are many other issues. For example, what to do about constitutional freedoms. There are some acts constituting material support for terrorism that would be protected from prosecution under free speech laws. Should those protections apply to self-admitted Al Qaeda fighters when being tried on US soil? We also have rules about how open a trial has to be. Are you going to allow, in the case of evidence containing highly sensitive information, a defendant to be convicted without a jury and not in open court?
I disagree. If any detainees in Guantanamo are US citizens, I agree. But the ones who are not should not be entitled to the full protections of our criminal courts. Which is why there are, should be, and, likely under Obama will be, military commissions to deal with some of them. As long as those commissions are set up in accordance with our treaty obligations and prior Supreme Court rulings, I have no problem with them being used to determine whether the detainees should be held indefinitely.
Edit: These military tribunals would also be able to handle the cases that deal with true national security issues that involve secret information.
So, by implication you also believe Americans should not be entitled to the full protections of judicial process when in other countries. An American in Europe or Asia should not have the same guarantees as a native citizen of those countries? I disagree. I would give everybody the same rights. Even Americans deserve them.
Interesting- I hadn’t seen the statute. It may go a little off topic to take this further, but I’m interested (and furthermore, it’s probably relevant to how we’re going to deal with the class of people who the evidence against is too sensitive to reveal)
From its first paragraph, it seems to be more focused on finding substitutes for classified material or giving the government notice of the disclosures necessary to bring a prosecution, rather than giving a means to admit such evidence against a defendant without letting the defendant see it. I can understand how pretrial discovery/redaction can involve classified material that’s kept from the defendant-but I remain confused as to how this can let the material be admitted and used against the defendant while keeping it secret–I read the statute as allowing redaction or summarization of X, and not letting the defense see the original, but I don’t read it as allowing the admission of the original while keeping that original from the D and from the jury.
On that point, the statute doesn’t mention a jury anywhere in it (either in getting clearances for/ordering nondisclosure from). So I understand how it can work in pre-trial proceedings, but I remain totally bemused as to how it can work at trial as to the trier of fact.
As jury trial is, within the federal system, a constitutional right the defendant can demand and I don’t see any way the need to present classified info can trump that. (presumably, a recalcitrant defendant will do so if it makes the government’s life harder). Similarly, I can’t imagine a jury that is both qualified under the Sixth Amendment and also all has security clearances). So either this relies on a compliant defendant, or it’s principally for pre-trial work.
Where does the Constutution say you have to be a US citizen to be protected by the Bill of Rights in US courts? Are you saying that any Canadian tourist arrested in the US would not have the right to an attorney, to a speedy tial, to confront evdienmce against him, etc? Do they have the right to free speech and religion? What is the statutory basis for your claims that non-US citizens don’t have civil rights in the US?
If an American abroad is found, by a competent tribunal, to be an unlawful enemy combatant, yes. If the
Again, I think you misunderstand me. Unlawful enemy combatants and US citizens abroad are not the same thing. Unlawful enemy combatants are not entitled to all the protections of the Geneva Convention, nor to all the protections of the Constitution.
The Constitution doesn’t only applies to, oddly enough, the US. It does not, nor has it ever, applied to the entire world. I do not expect the prisoners held by the US in Iraq or Afghanistan to be granted all the rights under the US Constitution either. And no court has ever held they are.
Again, I think you are, like sailor, misunderstanding me. Unlawful enemy combatants held in a territory of the US are not treated like foreign visitors on our soil. They never have been, and, nor should they be.
I think you’re misising a “not”-the current administration has been militant in asserting that these prisoners are NOT held on U.S. territory-but on American bases in on the sovereign territory of foreign countries (though, in the case of gitmo, that’s more or less a legal fiction).
Further, since “Unlawful enemy combatant” is a classification created by one of the Iraq War-era statutes (I think the DTA, but I’m not 100% sure), and since no non-citizen enemy combatant has been taken to U.S. soil, I don’t think any court has ruled on what happens in such a case.
How do you determine whether somebody is an “unlawful combatant” What opportunity or process exists for somebody to prove they are not an unlawful enemy combatant?
That designation basically doesn’t mean anything. It’s a made up category with no definition and no test for determining validity. It’s bullshit.
That’s because the Geneva Convention explicitly doesn’t recognize the existence of such a category. They’re either criminals, in which case they’re owed all of the rights and protections due to criminals, or they’re prisoners of war, in which case they’re owed all and the rights and protections due to prisoners of war, or there’s no grounds for holding them, in which case we’re unlawful kidnappers, plain and simple.
IANAL but, in U.S. law aren’t we compelled to find those people not guilty? Aren’t defendants routinely let off the hook because the apparently damning evidence against them was obtained illegally/improperly?
So if an American is taken abroad and is imprisoned indefinitely without trial, is tortured or is simply dispatched with a bullet to the head it is ok as long as those who did it invent a label like “enemy combatant” or “spy” or “capitalist imperialist pig”. Or is it a case of it being different depending on whose ox is being gored?
When can we start? There are about 150,000 Americans in London today. Many are bankers, who are complicit in stealing billions of pounds from us. I don’t think we can make charges stick against many in a proper court, but I’m sure we could get some confessions and redress if we can use, uh, ‘special procedures’ to deal with these complex crimes.
Release him. That’s the price you pay for not playing by the rules.
As I wrote before, no. You should give him a very big sum of money to compensate his arbitrary detention and possible torture, along with the bus ticket.
As for the rest, you fucked up, too bad. Keep an eye on the guy in case he would try to commit another crime you could then prosecute under due process of law.
That’s why we’re democracies. Because we don’t arbitrarily arrest people and don’t arbitrarily sentence them.
Indeed, since “US citizen” has a definition, but nobody knows what is an “enemy combatant”.
So, how do we determine that someone is an “enemy combatant” hence do not deserve to be tried according to the law, without first trying him according to the law to determine whether or not he is an “enemy combatant”? :dubious:
Can we arrest and sentence without trial American citizens for being “ugly tourists” too? How many new words are we allowed to invent on the fly, apply to whoever someone in the executive wants them to be applied, and use to deny basic rights?
Remember me when exactly the USA had decided that it should be a country with political prisoners who don’t benefit from the protection on the law and can be tortured? When will this concept be enshrined in your constitution?
Sorry, but how do I know that I won’t be considered an enemy combatant if I visit the USA? Remember that the USA did things like abducting a German citizen in a foreign country to be detained in a secret prison because he had the same name as someone else who was suspected of being up to no good, for instance. So, what guarantee do I have that I won’t be secretly arrested and detained, without any legal recourse because I look like someone that some anonymous guy thinks might have been in relation with a bad guy?
UNLAWFUL enemy combatants.
“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
Let me interrupt here for a second. Am I not being clear, that people continue to insist on this idea that unlawful combatants aren’t going to be tried according to the law? They are, or should be. Just not the law that applies full Constitutional protections as if they were citizens, and not the law of standard criminal trials? I’m not talking about kangaroo courts, but duly constituted, Court approved, military tribunals that give the detainees due process. I hope that clears it up a bit, so we can avoid any more accusations that this isn’t “according to the law”.
Let’s start at the beginning about how the process should work. Person A is seized by the military and thought to be an enemy combatant, so he is shipped to Guantanamo. Once there, a “competent tribunal” (to use the Geneva Convention’s language), determines if that person is a “enemy combatant”, an “unlawful enemy combatant”, or a poor schlub who is neither and should be released immediately. This finding justifies the prolonged detention of Person A. With the granting of habeas, that initial determination by the CSRT (Combatant Status Review Tribunal) is reviewable, and would allow Person A to challenge that finding in court.
When the case is ready, then the prosecution actual file charges against Person A, and a full military tribunal to try Person A to see if they are guilty of the charges. If they are, they are sentenced. All “according to the law”.
American citizens are entitled to the FULL protections of our criminal justice system. And “ugly citizens” isn’t, as far as I know, a crime. So there would be numerous (ex post facto mainly) problems with your scenario. But if you’re trying to draw an analogy between “unlawful enemy combatant” and “ugly tourist”, then you’re analogy is completely off base. For centuries there has been a recognized difference between lawful and unlawful combatants. And there are a plethora of sources (Geneva Convention, Hague Protocal, Supreme Court cases, and, oddly enough, US law) to make that determination. That’s not true with your criminalization of “ugly tourists”.
Your hyperbolic rhetoric and blatant misunderstanding kung fu is no match for my rational debate with humor kung fu.
As already asked, as determined by whom, and how?:dubious:
You are being clear, but evasive. Who gets to decide what protections do not apply, and on what basis?
You’re skipping over that last part pretty breezily. But that part is the heart of the fucking problem.