What is the best method for trying detainees/terrorists?
Below are four methods (two are currently being used), but if you feel one just doesn’t apply or have an entirely new solution, feel free to provide that. Be sure to state why, though.
National Security Court – Special court for special people. This would be a Congressionally created court that would only hear terrorist cases (similar to the federal bankruptcy court that only hears bankruptcy cases). This is only in the proposal stage, but is being considered by the President.
**Pros **- ? proposed examples… (a) mostly open to public proceedings, (b) skilled Judges, (c) hearing only one type of case makes court more efficient Cons – ? proposed examples…(a) hearsay admissible, (b) no miranda warning requirement, (c) some closed proceedings for the really bad guys, (d) is this even constitutional?
Here some articles discussing such courts: Obama Considering N. Sec. Court & A National Security Court
Federal Criminal Courts – all the rights every US citizen currently has afforded by the Supreme Court, Constitution, and US Congress. 120+ “terrorists” have been tried already since 9/11. Pros – (a) extremely respected court procedure, (b) Non-war crimes should be tried in regular courts. Cons – (a) testimony obtained by coercive methods not allowed. Why a drawback? The Army Field Manual lists some interrogation methods of enemy combatants that are legal (in war), but would be coercive (regarding a criminal). These might have been performed on these criminals/combatants and thus testimony obtained would not be admissible evidence. Plus the infamous enhanced techniques (torture).
Courts-Martial (UCMJ) – think “A Few Good Men” Cons – (a) hearsay evidence allowed; basic rule is if evidence is relevant, then its admissible. (c) don’t usually try “criminal” matters (terrorism, hijacking, material support, ect);
**Pro **– (a) see above. I never liked the hearsay rule. Neither does Europe; (b) respected court procedure. (c) military jurors are more apt at following instructions (ie, if a Judge orders you to or not to listen to something, you will obey).
Military Tribunal (MCA) – Keep on keepin’ on. Today they are very similar to a regular Courts-Martial. Perception, and past reality, are too much I suppose.
**Pro **– (a) jury, (b) cases can be appealed, (c) insulations between defense and prosecution Cons – (a) no Miranda, (b) no rules of relevance (accepted internationally), (c) allow coerced confessions if Judge approves (in practice so far, judge rarely approves). (d) Can try non-“war crime” offenses (no real historical precedent for this).
Lastly, the above outlines are general and if you disagree with the way I’ve presented an option or feel something important needs to be added, don’t hesitate. My aim is to see what this board thinks of the proposed National Security Courts and/or what is the best option for trying detainees/terrorists, and most importantly, why you feel that way.
Federal Courts. They are not lesser people, nor are they guilty til proven innocent. They should have a full and public trial, like anyone else. That message would go a long way toward the US getting some respect. You would be resentful if your citizens were treated like lesser humans by a country that pretends to push human rights around the world. It would be an affirmation of our declared principals of equality in the Judicial system.
Again, this. Terrorism is just another crime. And we’ve demonstrated conclusively that people can be falsely accused of it; so standards of evidence shouldn’t be loosened. And it would help reduce our justified reputation for barbarism.
There’s no question that we’re in a hole here, and things like the inadmissability of much of our evidence are unfortunate. But if we go with any other options than the established criminal justice system, then we’re just digging ourselves deeper into the hole. Yes, it’s possible that we might have to let some genuine terrorists go free because we’ve tainted the case against them. That just goes to show that we shouldn’t have tainted the case against them in the first place.
Thanks for the replies so far; I’m using the above quote as a jumping off point, b/c I think the problem with using a federal court runs deeper.
First, I think we already have special rules, even in the federal courts. For instance, there is not a right to confront your witness if that witness would compromise national security. Instead, you only get to use a summary of the questions the Gov’t has previously asked that witness. That’s a clear deviation from the norm.
Second, Should enemies captured on the battlefield in a foreign country really be read Miranda rights? Surely not, there’s another exception.
Third, hearsay; Do hearsay rules apply? Does this mean we have to produce witnesses from foreign countries? Or will the court just make more exceptions for certain situations.
I guess what I’m getting at is, are they really going to be held to the same standard as anyone else in a federal court, or will there just be exceptions made thereby making it federal court in name only.
Finally, there is still the twisted reality that even if someone is tried for a crime in a federal court and is found not guilty, they can still be preventively detained if they are determined to be an enemy combatant.
I think it’s more important to get some sort of standard legal status for these people with set legal rights and protections that are clear and that they’re aware of and that meets the standards of the Constitution and International law then specifically what type of legal procedure is set up. I’m not so bothered by special courts, or their being kept in a special prison (even an offshore one) as I am by the fact that they’re being kept in a legal limbo with seemingly no set protections or standards.
As you say, other western countries have special courts with different proceedures and standards of evidence. If congress and the President and the SCOTUS agree that these are OK, then I’m alright with it. Any of the options you listed are probably capable of providing due process if properly constructed. But having people sucked off to a legal limbo with no meaningful status and an ever changing set of protections is something that is associated with Communist Regimes and Banana Republics. It might’ve been understandable for a few months directly in the aftermath of 9/11, but 9 years on it’s a national disgrace.
We also need to look at the nature of our immigration policy. We still base it on facts that no longer hold true. In the past immigrants came with the idea America would be their new home and it was permanent. Indeed, even if they hated it, conditions made it unlikely they’d ever return.
Immigrants came and became American citizens. My folks immigrated from Yugoslavia and while I was born in America, the rest of my family except my brother became citizens. My brother chose not to live in America.
Now I know of immigrants who never become citizens and have lived here 30 years or more and have no intention of doing so. They enjoy all the rights of Americans (almost all) and still have that fail/safe of being able to return. Heck I know immigrants who even vote. No one checks.
Terrrorists exploit immigration policy to get their operators in the country. While in 1950 if you were an immigrant, people would want to know “Hey when you becoming an American?” Now no one cares. Democrats in large cities would seek immigrants out and pay for them to go to school to become citizen so they could vote.
Now immigrants can easily blend in and go undetected.
It’s like gangs in our cities. In Chicago it’s very common for young kids under 12 to act as lookouts for gangs. They get gifts like shoes and cell phones and if they’re arrested, so what? The younger the better.
Obviously parents know darn well their 10 year old can’t afford Nike’s and a cell pohne but ignore it, then when the kids is shot, they’re on the news crying.
What I’m trying to show is while these youngsters aren’t guilty of anything they’re not innocent either. They know and their parents know what they’re doing. But they know the rewards are great and the risk is small.
Terrorists like gangs exploit these “holes” in the legal system.
And a bad one. In that case, the “testimony” should be thrown out. After all, how do we know that this mysterious witness even exists ? Such “testimony” is really just the government’s unsupported word.
But this has little to nothing to do with captured enemies on a battlefield. It’s more about some guy we grabbed because someone we paid off told us he’s a terrorist, or someone who was accused so that we’d stop torturing the accuser.
Yes. And if we can’t, too bad.
That’s because we have no interest in justice or truth; a separate issue.
It’s also that the accused wants to use knowledge of the witness to his advantage; not just against him. The Gov’t, citing National Security reasons, might not allow this. The Supreme Court said this is fair (J. Scalia and Europe say unfair).
re: hearsay. Lots of countries do not have a hearsay rule; so I don’t see that change, possibly for the better, is bad just because it’s a change. The reality is they will just make another hearsay exception (there’s like 20 or 30 already).
re: preventive detention. I think it’s more related to the two modalities that are occurring at the same time. Criminal modality and a war modality. You can fight against the US and not commit a crime (ie, not guilty of x statute), but you’re still an enemy, and you have to stand on our sidelines until the war is over. You’re not being punished for a crime, but detained so you won’t keep fighting us. Of course, that can, and is, being exploited.
And in that case, you are a POW with defined rights. This isn’t about that ( where’s the evidence that many of these people even fought us ? ) This is about creating a special class of people, “unlawful enemy combatant”, which we can accuse people of being without evidence, whom we can treat as having no rights, and who we can hold indefinitely.
We need to put these people into a regular court, one with very strict rules of evidence and conduct because we are on trial as much as they are.
Say they are lawful enemy combatants (POW’s). You still sit out until the end of the war even though you haven’t committed a crime. The question is how to determine when hostilities have ended. Seems extremely difficult. And the seemingly novel situation of determining whether they are enemies or civilians (which the Geneva convention requires).
Of course, that buys into the whole war modality (which I do, kind of); but not if you just want to prosecute or release. Personally, I think it’s somewhere in between war and criminal and the law is taking time to adapt to that.
Say someone was picked up for knowingly feeding a terrorist organization (or some act on the fringe). What would you do with that person?
So preventively detain him until the trial. During the trial the Gov’t will have a signed affidavit from a US military guy saying this person was known to have fed the enemy (ie, material support or conspiracy to commit terrorism) and will give some specific facts backing it up (he won’t have to testify live). Another military guy will testify live as to what it all means and some background on the terrorist group, while in a nice respectable uniform (this will be his “job”). No response from defendant, or if he disputes it, then we explore the defendant’s Middle East background. 12 random Americans decide whom to believe.
Then we wait a few years for his appeals (assuming an organization is nice enough to help him) to go through and see if everything was nice and not done in bad faith. It is.
Would you be ok with that? Or something similar. Is that different in form, or name? Can the public citizens treat them like any other accused criminal? What if he’s dangerous and the jury needs to be picked up at secret locations in black SUV’s; Would they think this person is just like any other criminal? “Remember jury, he’s innocent until proven guilty…yea, ok.”
I dunno, I guess crimes like material support can work in a federal court. I think crimes like terrorism are better suited for a courts-martial.
< shrugs > That would depend on the evidence backing up the government’s claims. They should have to prove their case beyond a reasonable doubt, just like any other crime.
And when has that ever been necessary ? The only reason the government would do that, would be in an attempt to prejudice the jury.
Because it allows for a predetermined verdict, enforced by people who’ll lie and torture on command ? That’s certainly how it’ll be regarded; we need to get AWAY from anything that even slightly resembles a kangaroo court. We simply have no credibility on such matters.
I’m with ya, but what I’m saying is that affidavit will be the evidence backing up their claim. It will be up to a jury to decide if it’s enough. I’m thinking they will, but to each their own.
Usually in organized crime cases. But it has been done in terrorist cases, too. It’s done to protect the jury (from retribution and influence) and yes, it’s pretty prejudicial.
That’s probably how it will be regarded. It’s a shame, though. Courts-martial are the furthest thing from a kangaroo court.
Maybe, terrorists should be tried by a third party neutral country. Or international court.