Is there a fair way to prosecute terror suspects without compromising sources?

Great Debates
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Hamlet, if a trial isn’t public, there might as well be no trial at all. It’s a sham. If a trial doesn’t have a jury, there might as well be no trial at all.

If the government is accusing them, and the government is trying them, someone not associated with, or beholden to, the government needs to oversee the trial; or else the government can just imprison or execute the suspects and simply pretend a trial occurred. I don’t know why you don’t see this. In the US, this problem is resolved with public trials by a civilian jury. I see no reason to dismiss that valuable process in this case. It has worked well for 220 years.

Hearsay is not credible evidence. “Yeah, I heard Hamlet was a terrorist, too.” Is that what you want to hear over and over at your trial? Especially by people who’ve never met you and you’re not allowed to see?

Miranda rights are basically the 5th amendment restated. The right to legal counsel the right to not incriminate oneself and the right (or warning) of knowing beforehand that your words will be used against you in court. Would you deny these rights to prisoners, or only deny them the right of knowing about them? I can’t see why forcing suspects to lie to the court (because that’s all they’ll do when called to testify against themselves) and not allowing them an adequate defense helps determine whether or not they committed the crime.

And speedy trials aren’t necessary (for some definitions of speedy), but trials are. Would you allow them to sit in jail for 50 years while we say “we’re getting around to it” when they ask about a trial? To me, speedy just means due process. Reasonable delays are okay, but 8 years with no attempt at a trial is not okay.

ETA Thanks Huerta. I didn’t realize a lease agreement with a government that no longer exists could be valid. But hey, there’s a lot I don’t understand about politics.

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Why? I fully agree that a public trial is certainly preferrable, and is a great check on the powers of the prosecution, but is it necessary for a fair trial? Nope. Not if the tribunal members follow due process and follow the law, and the results of the tribunal are subject to judicial review. I don’t like it, but I like cutting a terrorist loose because to try him publically would compromise our national security even less. I am fully aware that losing the public aspect of a trial removes a wonderful check on the prosecution (as well as a fantastic way to turn public opinion against terrorists), but, if the government can show a federal judge the necessity of it, I don’t have have a problem with it. It should be rare, of course, but to completely abolish it ignores the reality of national security.

Well the hundreds of thousands bench trials that happen a year, as well as the War Crimes tribunals of the past, and those going on now, all show you are wrong. It is perfectly possible, and happens with great frequency, to have a fair trial without a jury.

Is it just the military you have a problem with, or judges too? Is everyone “associated with or beholden to, the government”? Or isn’t it just possible that judges and the military can, despite your protestations, be fair and impartial. Or is it only juries that can do that? Personally, I find juries to be a heck of a lot more likely to be swayed by their emotions and not the evidence.

Sure it works. But, once again, it is not the ONLY way for it to work.

Hearsay, like pretty much any kind of evidence, can be credible or it can be incredible. It all depends on the circumstances. Which is why, even in the US, there are exceptions to the hearsay rule. And it is also why, again using Nuremberg, prior War Crimes tribunals around the world, current ones going on, and even the Geneva Convention, do not automatically exclude hearsay evidence.

No, they’re not. It’s a prophylactic rule, not a restatement. And expecting our military to Mirandize everyone they seize or question, is ridiculous. If we had police everywhere in the world to Mirandize every person, maybe, but for now, it’s, to my mind, a ludicrous requirement.

I think the right to counsel and the right against self incrimination, are rights that the military tribunals should recognize ad protect. But requiring informing people before their statements can be used is, again, ludicrous. Many legitimate, civilized countries (and, again the War Crimes tribunals of the past,) do not require it.

Good thing I don’t advocate that, isn’t it then.

Great. We agree again, at least in principle. See how easy that is when you actually engage in debate instead of just knocking down strawmen?

The Geneva Convention allows for the detention of POWs without trial for the entirety of the war. The war is still going on.

But you’re right. 6 years is too long. Personally, I blame Bush and his ilk and hold high hopes that Obama will work to solve this mess. And one of those solutions should be the availability of military tribunals.

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I agree that trials without juries can be fair. However, I think that choice should be left up to the defendant in a serious criminal trial (i.e., more serious than traffic court). I think juries are a check on the legitimacy of a trial; a court may cut corners and overlook certain inconveniences and still fool the public, but a jury will try to ensure they don’t.

I agree that the military (except for MPs) can’t be expected to Mirandize every suspect they detain; however, those subjects should be read their rights when they are removed from the field into a long-term detention facility. Of course, the government doesn’t recognize that they have any rights at all, so I guess that point is moot.

I know enough about hearsay to understand why there might be exceptions, but I don’t know what those exceptions are or why you would propose anymore exceptions. If a certain testimony can’t shed light on the facts of the case, but only on someone’s vicarious interpretation of them, why should that testimony be allowed?

If the Geneva Convention says that POWs can be held without trial for the duration of a war, I disagree with Geneva, then. If a war lasts decades, a point comes when something must be done. When that point is, and what should be done, is another debate. Because I’m pretty sure the Supreme Court (or somebody) ruled that the detainees at Gitmo weren’t POWs.

The biggest disagreement I have with you is over public trials. Yes, I find them absolutely necessary. They aren’t just a ‘great, wonderful’ check on the prosecution, they’re the only check on the prosecution. What else is keeping the suspects from simply being disappeared? I can see the press conference now: “We had a trial. No, we can’t tell you anything about it. They were found guilty, sentenced to death and hung last night. Oh yeah, absolutely airtight case. They even confessed. Of course everything was legit, we’re the government. Judge So-and-So will calm your fears over the legitimacy of the trial:” “Yeah, it was legit.” “No more questions, this is a matter of national security.”

National security isn’t the be-all end-all. Its priority falls well below national integrity.

Anyway, Hamlet, while I might tenuously agree with some of your propositions, I’m really not seeing their necessity. You never did tell me why you think we have those rights in the first place. If hearsay can be credible, why is it excluded from a “regular” court of law? If juries can be dispensed with why are they guaranteed by the Constitution? My answer is because those rights help protect ordinary people from the government, and protects the government from punishing the wrong guy and letting the real bad guy go free. I still don’t see why we should suspend those rights just because the accused person was born in another country.

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I disagree. The law, the treaties we have, the judges, and judicial review of all proceedings are all additional checks on the prosecution. Again, there are thousands of non-jury trials occurring every year in the US, and War Crimes tribunals, including Nuremberg, have usually involved judges rather than juries.

If the government wants someone disappeared, they disappear. They don’t need a fake trial for that.

But neither is it completely discountable. In the hopefully rare cases, it should be a consideration in the public trial. I fully advocate having judicial review and appellate review of the decision to keep it secret before it is allowed to. But completely barring it is unnecessary.

I gave you the reasons. You are, of course, free to disagree with them, as you have. I think we’ve reached a point where we can agree to disagree.

As I said, it isn’t always excluded from US courts. Nor is it excluded from prior War Crimes tribunals, Nuremberg, or the Geneva Convention.

Of course that’s their purpose. But, again, a public jury trial ISN’T THE ONLY WAY to meet that purpose. Properly constituted, well run, military tribunals can also meet those purposes, while also dealing with the issues of national security, rules of evidence, etc that I listed earlier. It isn’t by any means a new way of dealing with them, either. As my nigh but constant references to prior tribunals has shown.

Thanks for the debate.

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This is BS and the SCOTUS has said as much. The USA exercises efective contriol in Guantanamo and it is disingenious to say the Constitution does not apply there because it is not American soil. By that reasoning you could take a bunch of American on a ship offshore and torture them. It is pure BS. America was founded on certain ideals of justice and human rights not on technicalities on how they could be avoided. It is shameful.