# Is there a fair way to prosecute terror suspects without compromising sources? **URL:** \ **Category:** Great Debates\ **Created:** [January 23, 2009, 8:20am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610 "2009-01-23T08:20:50Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![sweeteviljesus](https://avatars.discourse-cdn.com/v4/letter/s/898d66/32.png) [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)\ **Post date:** [January 23, 2009, 8:20am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/1 "2009-01-23T08:20:50Z")
Subject says it all, I think. Thanks, Rob ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [January 23, 2009, 9:53am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/2 "2009-01-23T09:53:44Z")
It’s funny. Since there are some inconvenient things about prosecuting those in Gitmo then the solution is they should just be kept imprisoned without trial. There are also certain inconvenient things about prosecuting American officials for possible crimes committed during their term in office, including torture in Gitmo, so the solution is to not prosecute anyone and just forget anything ever happened. Funny how things work differently depending on whose ox it is. Besides, personally I believe the whole “compromising sources” thing is pure BS. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [January 23, 2009, 4:13pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/3 "2009-01-23T16:13:51Z")
If this country really wants to prosecute anyone under the US Constitution, there is this little diddy to consider: > [@](#): > > In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; **to be confronted with the witnesses against him** ; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Sixth Amendment to the US Constitution If “terror suspects” are not subject to the US Constitution, what happens when you [are arrested and convicted under the Patriot Act](http://www.latimes.com/news/nationworld/nation/la-na-airline-felonies20-2009jan20,0,5468299.story) just because you swore at a flight attendant on a commercial aircraft? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 23, 2009, 6:03pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/4 "2009-01-23T18:03:46Z")
> [@Duckster](#): > > If this country really wants to prosecute anyone under the US Constitution, there is this little diddy to consider: > Sixth Amendment to the US Constitution > > If “terror suspects” are not subject to the US Constitution, what happens when you [are arrested and convicted under the Patriot Act](http://www.latimes.com/news/nationworld/nation/la-na-airline-felonies20-2009jan20,0,5468299.story) just because you swore at a flight attendant on a commercial aircraft? The previous administration took the position that it wasn’t “terror suspects” that were beyond the reach of the Constitution, but Cuba, in general, and Guantanamo Bay, in particular. In other words, the persons held at Gitmo were not US citizens or in the United States, and therefore did not have all the rights guaranteed to them under the Sixth Amendment. The current administration appears to disagree in some respects. It’s unclear to me if they disagree this is how these prisoners in particular should be handled, and will solve the problem by moving them _en masse_ to the U.S., or whether they think that the law should be read differently. In any event, the Supreme Court agrees that the prisoners outside the US were not entitled to every single constitutional protection that a person in the US is. That doesn’t stop the government from extending such protections if they choose. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [January 23, 2009, 6:18pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/5 "2009-01-23T18:18:18Z")
> [@Bricker](#): > > The previous administration took the position that it wasn’t “terror suspects” that were beyond the reach of the Constitution, but Cuba, in general, and Guantanamo Bay, in particular. In other words, the persons held at Gitmo were not US citizens or in the United States, and therefore did not have all the rights guaranteed to them under the Sixth Amendment. > > The current administration appears to disagree in some respects. It’s unclear to me if they disagree this is how these prisoners in particular should be handled, and will solve the problem by moving them _en masse_ to the U.S., or whether they think that the law should be read differently. In any event, the Supreme Court agrees that the prisoners outside the US were not entitled to every single constitutional protection that a person in the US is. That doesn’t stop the government from extending such protections if they choose. Once the Government decides to extend such protections to a particular group of prisoners, doesn’t that set a precedent? ---
**Author:** ![ivan\_astikov](https://avatars.discourse-cdn.com/v4/letter/i/58f4c7/32.png) [@ivan\_astikov](https://boards.straightdope.com/u/ivan_astikov)\ **Post date:** [January 23, 2009, 7:17pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/6 "2009-01-23T19:17:19Z")
> [@](#): > > **to be confronted with the witnesses against him** Witness is verified as who he says he is by an approved group and then is given a disguised voice and a screen to hide behind. Where’s the problem? ---
**Author:** ![sweeteviljesus](https://avatars.discourse-cdn.com/v4/letter/s/898d66/32.png) [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)\ **Post date:** [January 23, 2009, 7:52pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/7 "2009-01-23T19:52:18Z")
> [@sailor](#): > > Besides, personally I believe the whole “compromising sources” thing is pure BS. But how do you know? FWIW, I think that it was right to shut Gitmo and I think that those detained need their day in court. But how do you combine the need for a fair, open trial with the need to protect secrets? How would it be legal to have a secret witness against you? Would you be willing to trust your lawyer to tell you that it’s all good? Would that stand up on appeal? Presumably, Obama is now in a position to separate the wheat from the chaff, so to speak. That is, he can determine which cases could not cause harm in open court. But what does he do with the rest? Thanks, Rob ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [January 23, 2009, 8:26pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/8 "2009-01-23T20:26:34Z")
> [@sweeteviljesus](#): > > But how do you know? FWIW, I think that it was right to shut Gitmo and I think that those detained need their day in court. But how do you combine the need for a fair, open trial with the need to protect secrets? That might be a valid question in the Soviet Union, North Korea, China, Lybia… not in a free country subject to the rule of law where the right to not be punished without the full protection of a fair trial should be paramount. There are plenty of people out there who are strongly suspected of crimes, who we have the internal certitude that they have committed crimes and will probably doi so again but we cannot make it stick in court and the best we can do is have the police keep an eye on them. Just because we suspect someone might kill does not mean we can lock them up without trial. Just because we do not want to blow the cover of an informant does not mean we can lock people up without due process. This is not a new problem. It has existed with the mafia, with gangs, with organized crime, with politically motivated crime. It is not new and it is BS to pretend that it is new or different. And I believe it is all BS because the whole thing was set up by an Administration who lied so much they had no idea what the truth was any more. A criminal administration. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [January 23, 2009, 8:48pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/9 "2009-01-23T20:48:24Z")
> [@sailor](#): > > That might be a valid question in the Soviet Union, North Korea, China, Lybia… not in a free country subject to the rule of law where the right to not be punished without the full protection of a fair trial should be paramount. > > There are plenty of people out there who are strongly suspected of crimes, who we have the internal certitude that they have committed crimes and will probably doi so again but we cannot make it stick in court and the best we can do is have the police keep an eye on them. Just because we suspect someone might kill does not mean we can lock them up without trial. Just because we do not want to blow the cover of an informant does not mean we can lock people up without due process. This is not a new problem. It has existed with the mafia, with gangs, with organized crime, with politically motivated crime. It is not new and it is BS to pretend that it is new or different. > > And I believe it is all BS because the whole thing was set up by an Administration who lied so much they had no idea what the truth was any more. A criminal administration. I believe Gitmo was opened with the express intent to sidestep some of these issues. There are definately some definite legal concerns regarding the classification of some of these guys (POW, criminal, what?) that still need to be worked out, as they seem to have fallen through the cracks of the various treaties, but otherwise, I do not support indefinite incarceration without trial. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [January 23, 2009, 9:01pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/10 "2009-01-23T21:01:02Z")
> [@mlees](#): > > as they seem to have fallen through the cracks of the various treaties, They didn’t fall through the cracks. A crack was specifically created to push them in. ---
**Author:** ![sweeteviljesus](https://avatars.discourse-cdn.com/v4/letter/s/898d66/32.png) [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)\ **Post date:** [January 23, 2009, 9:43pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/11 "2009-01-23T21:43:50Z")
> [@sailor](#): > > There are plenty of people out there who are strongly suspected of crimes, who we have the internal certitude that they have committed crimes and will probably doi so again but we cannot make it stick in court and the best we can do is have the police keep an eye on them. Just because we suspect someone might kill does not mean we can lock them up without trial. Just because we do not want to blow the cover of an informant does not mean we can lock people up without due process. This is not a new problem. It has existed with the mafia, with gangs, with organized crime, with politically motivated crime. It is not new and it is BS to pretend that it is new or different. Not having evidence to convict is one thing. Having evidence that you don’t wish to disclose is something else. I am not saying that we do, but if we do, and the Obama adminstration is in a position to judge, how do we go about trying these people without compromising national security? Thanks, Rob ---
**Author:** ![Kobal2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kobal2/32/20_2.png) [@Kobal2](https://boards.straightdope.com/u/Kobal2)\ **Post date:** [January 23, 2009, 10:05pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/12 "2009-01-23T22:05:56Z")
> [@clairobscur](#): > > They didn’t fall through the cracks. A crack was specifically created to push them in. What are you, nuts ? A specific crack would be too restricting, and liable to questioning. Better to juggle them between vaguely defined ones, if that. The best way of course is to state which cracks they _didn’t_ fall into, and leave it at that. 😉 ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 23, 2009, 10:45pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/13 "2009-01-23T22:45:45Z")
> [@ivan\_astikov](#): > > Witness is verified as who he says he is by an approved group and then is given a disguised voice and a screen to hide behind. Where’s the problem? The Supreme Court has specifically rejected this approach. It came up in a child-molestation case, wherein a court tried to use such devices to protect a child witness from some of the stress of testifying against the defendant. The Court held that this violated the defendant’s right of confrontation. ---
**Author:** ![casdave](https://avatars.discourse-cdn.com/v4/letter/c/c6cbf5/32.png) [@casdave](https://boards.straightdope.com/u/casdave)\ **Post date:** [January 23, 2009, 11:44pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/14 "2009-01-23T23:44:04Z")
Many other countries have had issues with terrorists and have coped with these issues. Some countries use trials without juries, others use protected witnessess and protected prosecutors in certain highly dangerous organised crime cases. If Italy, Germany, France, Spain, UK can all handle these terrorism cases, then surely the US can. You can extend that list depending upon what countries you decide have a fair legal system, fact remains, it can be done, and that is probably what leads to such damage to the reputation of the US. ---
**Author:** ![sweeteviljesus](https://avatars.discourse-cdn.com/v4/letter/s/898d66/32.png) [@sweeteviljesus](https://boards.straightdope.com/u/sweeteviljesus)\ **Post date:** [January 23, 2009, 11:57pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/15 "2009-01-23T23:57:49Z")
Well, how do they do it? Thanks, Rob ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [January 24, 2009, 12:36am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/16 "2009-01-24T00:36:29Z")
> [@sweeteviljesus](#): > > Not having evidence to convict is one thing. Having evidence that you don’t wish to disclose is something else. I am not saying that we do, but if we do, and the Obama adminstration is in a position to judge, how do we go about trying these people without compromising national security? Look, this compromising national security is BS invented by a BS administration but, in any case, you can’t have your cake and eat it. If you want to try someone you try them with all due guarantees and if you are not willing to do that then you don’t try them and you let them go. There is evidence someone committed a crime and yet they are let go because the evidence is tainted because the integrity of the process is more important than a single conviction. There are criminal organizations, mafias, gangs, etc. which have been infiltrated and prosecuting may require revealing witnesses and information which the cops would rather not reveal if they could keep it secret but that is not how the system works. And a few guys compromising “national security” is just BS. Narco cartel bosses are more dangerous and have more power and they cannot compromise national security and they are afforded their rights. The notion that a few guys in Gitmo could do anything worse is just plainly ridiculous. It is BS sold by the Bush administration who did nothing but lie. What amazes me is how the American people swalloed so much BS without question. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [January 24, 2009, 3:19am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/17 "2009-01-24T03:19:46Z")
> [@Bricker](#): > > The previous administration took the position that it wasn’t “terror suspects” that were beyond the reach of the Constitution, but Cuba, in general, and Guantanamo Bay, in particular. In other words, the persons held at Gitmo were not US citizens or in the United States, and therefore did not have all the rights guaranteed to them under the Sixth Amendment. And if you are a US citizen, arrested on US soil and transported to Gitmo, then what? Or maybe kept on a military base within CONUS, a la Jose Padilla? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [January 24, 2009, 5:04am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/18 "2009-01-24T05:04:17Z")
> [@sweeteviljesus](#): > > Well, how do they do it? There are many criticisms about the way terrorism cases are handled in France. In particular : -Laws : the statute generally used to prosecute cases of terrorism (the crime is called something like “criminal association related to a terrorist action”) is considered too broad and too vague, allowing the arrest and prosecution of people whose connection with terrorism might be very tenuous. -Arrest : Suspects rights are curtailed. They can be detained up to three days without access to a lawyer, and up to six days without a formal accusation. There has been accusation of mistreatment like sleep deprivation used during these detentions. -Enquiries : They are normally led in France by a magistrate supposed to enquire on behalf of both the accusation and the defence. In cases of terrorism, there is a small pool of specialized and protected magistrates. It is said that this situation, creating close ties with specialized police and intelligence services, incline them to strongly favour the accusation. The fact that they gather and use informations obtained in countries suspected of using torture (or known to use it) has been criticized (by the way, this has been a problem with people formerly detained in Guantanamo). -Defence : Lawyers complain about their inability to deal with the enormous amount of documents and files sometimes gathered during the enquiries, especially since they are most of the time public lawyers paid a pittance. They also say that the magistrates not infrequently deny requests for specific enquiries in behalf of the defence. -Detention : The enquiry is often long, and as a result accused are often detained for a long time before the trial. The judges who allow detention or hear the appeals regarding pre-trial detention are accused of often just rubber-stamping whatever decision the magistrate in charge of the investigation has made. -Trial : It is done by a panel of judges, without a jury. I don’t think this has been seriously criticized. It has originally been implemented due to death threats against the jurors (who subsequently felt ill in droves) IIRC during the 80s. AFAIK, evidences or testimonies must all be disclosed to the defence, so I don’t think a secret or classified information can be used during it. However, some argue there seem to be a tendency to find the accused guilty of something, even when the main accusations don’t stick. And a tendency to hand out sentences at least as long as the pre-trial detention (which is often abnormally long, as mentioned above). ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [January 24, 2009, 6:24am UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/19 "2009-01-24T06:24:21Z")
> [@](#): > > **sailor** : What amazes me is how the American people swalloed so much BS without question. A good many of us didn’t. Just look back at old discussions right here at the SDMB. But what could we do besides talk, protest, vote and wait for our court system to act? These were war crimes and Americans need to quit being polite about it. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [January 24, 2009, 12:09pm UTC](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610/20 "2009-01-24T12:09:27Z")
> [@Zoe](#): > > A good many of us didn’t. Just look back at old discussions right here at the SDMB. But what could we do besides talk, protest, vote and wait for our court system to act? > > These were war crimes and Americans need to quit being polite about it. But will we prosecute? I don’t see how we _can’t_, but I doubt we will. Do we have the 'nads to actually follow the rule of law here? There is still a huge number of people who believe that there is no other option than to toss aside the very laws that separate us from uncivilized nations in order to protect ourselves. Will popular opinion outweigh our (less popular) desire to do the right thing? [Next page](https://boards.straightdope.com/t/is-there-a-fair-way-to-prosecute-terror-suspects-without-compromising-sources/482610.md?page=2)