One more enemy combatant

Great Debates
41

There are many reasons why a public trial of these terrorists is objectionable.

As I’m sure you’re all aware, gathering intelligence is a secretive business. If we have public trials in which we present the evidence against these terrorists, the presentation of evidence may necessarily give away the source of that information. For example, if our information comes from an operative or informant placed within the terrorist cell, we can’t really expect to be able to use him after he has appeared and presented evidence at trial; his cover will certainly be blown. The same goes for tapped phone lines, intercepted emails, bugged conversations, etc. Any time we publicize the fact that we have knowledge of certain information, the terrorists will no longer use those phone lines or emails, or they’ll change the manner in which they’re communicating sensitive information. That means we won’t be able to tap into those information sources any more.

Thus, by using the intelligence we’ve gathered as evidence in a public trial, we’re drying up the sources of information. Every time we publicize the information gathered, it becomes more difficult to predict terrorist strikes and thereby prevent their occurence. The choice becomes:

  1. try the individual and give up our sources of intelligence, thereby decreasing the likelihood that we’ll be able to prevent future terrorist acts;
  2. let the individual go, thereby increasing his ability to continue the goals of the terrorist network and increasing the likelihood of future attacks; or
  3. hold him indefinitely until our intelligence is compromised through other means or becomes outdated, and try or release him at that point.

In this way, trying the suspect and protecting the American people are mutually exclusive. Option 3 is not without its costs. But as I’ve stated over and over, I think that if option 3 is used only sparingly, then the costs of not trying the potential terrorist are vastly outweighed by the benefits.

Another reason is that enemy combatants might not be strictly violating domestic laws. For example, even if the FBI hears Joe McTerrrorist talking with Osama bin Laden about planting a bomb in the Mall of America, he hasn’t committed a crime until he actually takes a step toward enacting his scheme (i.e., acquiring bomb-making materials, etc.). Thus, despite knowing that he’s planning to kill civilians and has the money and ability to make and plant a bomb, the FBI would not be able to arrest him and charge him with a violation of American law.

But should the government be forced to wait until he’s actually bought explosive materials and started constructing the bomb before they arrest and detain him? Under international law (specifically, the EC/UC doctrine), the government doesn’t have to wait. He’s just shown himself to be engaged in acts of sabatoge on behalf of an enemy agent that removes him from the protections of the Geneva Convention, and makes him subject to detention as an EC/UC. I think that’s a good thing, and I find the alternative – that people that consider themselves at war with the US can’t be detained under the rules of war – very scary.

These type of detentions are not ony important for keeping terrorists from bringing their plans to fruition and keeping our intelligence sources secret, but for gathering intelligence. It’s much easier to get information from Joe McTerrorist if we can keep him in custody, and if he believes that we can keep him in a military brig for as long as we want until he talks.

Perhaps most importantly, we should be allowed to detain terrorists for indefinite periods because we want to win, and because the law says we can do it. Why should we make preventing terrorist attacks more difficult than it already is? If the law is on our side, we should use it.

There are others, but these are just a few off the top of my head.

42

Your first point relates to a public trial. The classified evidence does not have to be presented in public. I am sure there must be provisions for the same.

If OBL is wanted by the FBI, and someone talks to him about plotting another attack, I do not fathom why the current laws probihit the FBI from detaining the man and interrogating him?

The fundamental flaw with this statement is your assumption that person in question is a terrorist. It is rather disingenuous to say: “Let us detain terrorists indefinitely” and expect us to disagree with that notion.

I continue to await the reasoning for a new set of ambiguous laws/orders that give the State way too much power behind a cloak of secrecy.

43

First, I apologize for the ridiculous length of my last post. I’ll try to be more brief this time.

I am unaware of any provisions that would allow a conviction based solely on evidence that can’t be presented at trial. In order to have a conviction by an independent judiciary, someone would have to present the evidence to someone, which necessarily involves its disclosure. And since civilian jurors could not be made subject to any confidentiality agreements, presentation of the evidence would necessarily run the risk of public disclosure. The evidence would at least need to be disclosed to the accused, wouldn’t it? And anway, what’s the point of convicting in a trial where the evidence must remain secret? (Another option, I guess, is to present the evidence in a closed trial, which I understand is one of the advantages of a military tribunal – the evidence can remain classified).

Well, one of my points is that LE can detain and interrogate you for talking to known terrorists about terrorist actions. That’s what’s going on here. But I see I haven’t made that point clear. I apologize for that.

Another point I tried to make is that even though they can detain and interrogate you, it’s not against the law to talk to someone that’s wanted by law enforcement. And unless you take some action in furtherance of your conspiracy or plan, you can’t be convicted for that plan. So, yes, they can be detained and interrogated, but no, they can’t be tried and convicted for it.

I admit that the flaw in my argument is that it relies on the assumption that the government has some reason to believe that these people are guilty of what they’re accused. But by the same token, it’s rather disengenuous to say “There is no evidence that these people did anything wrong” and expect me to support their detention.

Speaking of disengenuous arguments . . . . I agree there is no adequate reason for “a new set of ambiguous laws/orders that give the State way too much power behind a cloak of secrecy.” And if I run across one of those laws, I’ll let you know.

44

Age Quod Agis, your post makes no sense to me. Trials can be held where some parts of evidence or proceedings are kept secret. During the cold war America tried spies for the soviets. America did not just disappear people with the excuse they were Russian Spies. They were tried.

The notion that they might not be violating any laws is just silly. Conspiring to kill people is already illegal. And If you want to make something else illegal then the way to do it is to pass a law not to go about it like a banana republic which disappears people.

A person is innocent until proven guilty. If you do away with this principle you begin to slide down the slippery slope away from civilization. Look what happened in Argentina and Chile when they did the dirty war against commmunism. It has left them scars that will take many generations to heal.

The present state of things in the USA is unacceptable to me. The government of the USA is doing things which are not acceptable in a civilized society. That also includes the treatment of some of the prisoners and the handing of some of them to countries where they would be tortured, in direct contravention of the UN CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment of which I believe the UN is a signatory and which states:

The same applies IMHO to due process of law.

45

sailor mentions that classified evidence has been presented in public trials in the past. I hope a lawyer or some one with a knowledge of history can help us out with this.

In any case, I think it would be a stretch to claim that disclosing any evidence (since you used the word “solely”) publicly would significantly weaken the intelligence battle. I can envision the agencies making judgements by weighing the costs, and presenting some evidence publicly and some behind closed doors. Instead, I see that the government is taking the easy way out. “Let us not bother presenting any evidence at all to anybody”. While that is fine and dandy from the POV of terrorist intelligence, it completely ignores the cost of holding a potential innocent indefinitely. I am beginning to believe (at the risk of generalizing) that the apathy on the part of the public stems from the fact these men are not US citizens or even if they are, they don’t “look” American. I mean, Padilla is a name that the majority cannot empathize with.

That is the premise of innocent until proven guilty. Yes, sure, you cannot be convicted if the event has not happened but I think the power to detain him, interrogate him, and keep tabs on him is more that sufficient. Sure, the easy way out is to detain for an indefinite period of time anyone in this country that has come in contact with a convict and spoken of committing atrocities/crimes… Based on your cost/benefit argument, you would support this too?

A pretty serious flaw if you consider the track record of the abuse of power. Which side would you err on?

If defining a term for the purpose of detaining people indefinitely without recourse isn’t too much power behind a cloak of secrecy, tell me what is.

46

To my everlasting shame, I am a lawyer. And to the extent that sailor implied that confidential information has been presented in public trials before, I think sailor is wrong (however, I would welcome the advice of a history buff). Spies – for example, the Rosenbergs – weren’t convicted by presenting confidential information. They were convicted by presenting strong circumstantial cases that they were involved with the Communist party and attempting to gather state secrets. The jury was not presented with evidence of what those state secrets were, nor were the identity of any American spies disclosed. Rather, the chief evidence came from the Rosenbergs’ friends and accomplices. So there was no confidential information disclosed in their trial. (For more detail on the evidence presented, see this site, which includes some of the trial transcripts.)

I live in Texas. Plenty of people 'round here empathize with the name Padilla. I even know a couple of Padillas. But sentiment on his behalf doesn’t seem to be any stronger here than elsewhere.

Isn’t it also possible that most Americans appear apathetic because they aren’t troubled by what the government is doing, or are even happy about it? Why do you assume Americans don’t care because Padilla is a minority? Do you really believe that they’d feel differently if someone named Smith or Jones were detained? What do you make of the fact that most minorities – even those named Padilla – don’t seem to be overly concerned?

No, that’s the concept of Actus Reus. And to be clear, you need not complete the crime (i.e., blow up the mall), you need only to complete some overt act in furtherance of the crime (i.e., start building the bomb). And while you may think that detention and interrogation, followed by “keeping tabs” on someone is sufficient, it certainly informs my opinion that law enforcement officials think it’s not sufficient.

Of course not. Please go back and re-read my prior posts. I believe I have made abundantly clear that detention without trial is only justified in the most rare of circumstances. Rather than creating strawmen, let’s try and stick with the actual arguments, shall we?

I am unaware of any “track record of the abuse of power.” It’s starting to sound more like your opposition to this policy is merely thinly disguised opposition the Bush administration. If your only objection to this policy is that the Bush administration is enforcing it, then let me know and I’ll stop trying to convince you otherwise.

And I try not to err on either side. I try to look at the situation as it is, and I try to choose the path that is least likely to be an error. But if we’re looking at error, then I feel more comfortable that my mistake (locking up an innocent man for a couple of years) would be less severe than the error on your side (not locking him up, and he rams a fully loaded plane into a skyscraper).

That’s not what’s going on here. First, the people have recourse – every one of them has filed or will file a writ of habeas corpus with the Courts. Second, your implication that “indefinitely” means “without end” is false. “Indefinitely” merely means that we don’t know when it’s going to end. The folks in Gitmo were being held indefinitely, and most of them are now preparing to go home. Third, the term wasn’t defined “for the purpose of detaining people indefinitely without recourse.” EC/UC was first used (at least, its first use of which I am aware) in the context of bringing German sabateours to trial before military tribunals.

47

Yes, people around the globe are always apathetic when the government’s doing doesn’t specifically trouble them.

Dangerous road, as a simple flipping through history books can easily show.

48

His indictment went back in time?

A thousand years later, and they still haven’t filed a writ of habeas corpus? Damn, the court system in this country is slow!

49

Whether or not classified material has been used in a US trial before is immaterial. If the current threat to American interests is strong enough to justify detention without trial it is certainly strong enough to compromise any of the 13 or so intelligence agencies operating under the Stars and Stripes.

In any case, clasified evidence has been presented in several federal prosecutions before. Both Klaus Fuchs (in the UK, but with evidence provided by the United States) and Theodore Hall, 2 of the most prolific nuclear spies, were convicted using classified material- letters in Fuchs’ case, bomb specifications passed to the Soviets by Hall in his case.

Several Britons, including Kim Philby, WW2 superspy, have been convicted using top secret material released by MI5 which led to several security compromises of the Service.

50

The idea that a bunch of terrorists present a greater threat to the USA than the Soviet Union did during the cold war is just plain silly. And yet this is what the present US government is trying to say.

During the cold war spies and foreign agents were apprehended and yet there was no need for this “enemy combatant” crap. Spies were tried and convicted. If it was possible then how is it not possible now?

Even during that most shameful episode of American history which was the McCarthy era the exceses did not even come close to what is happening today. While many people suffered in their reputation and livelyhood, no one was just taken away by the government without an explanation.

If those governments could respect basic due process I can’t see why they cannot continue to be respected today.

51

Thats what we call the loooooong arm of the law.

Theodore Hall has never even been arrested to my knowledge, much less convicted.

Kim Philby escaped to Russia and was never tried.

Klaus Fuchs had a trial which lasted literally one and a half hours. There was only one witness, a gentleman named Skardon who was responsible for recording Fuch’s confession. And the only evidence presented was, in fact, Fuch’s signed confession. Nice procedure when you can get away with it.

52

Well, I don’t even know how to research this. I will try this long weekend. But, to my mind, it shouldn’t be that big a deal to present some classified evidence behind closed doors. In the link you provided on the Rosenberg trial, I noted that few of the people who testified had an espionage background. Elizabeth Bentley was a secret spy made public in that trial?

Well, how do you judge the circumstances?

Not at all. I meant power in the general sense.

You are standing on a slippery slope. It almost sounds like imprisoning someone under suspicion only for the potential common good for society.

I interpret indefinitely to mean the latter. It seems bad enough without having to interpret it as never!

Cite?
Out of the 650+ people kept there, about 20 have been released thus far with a dozen or more scheduled for release after 1.5 years. I surely don’t see most of them preparing to go home.

http://www.cbsnews.com/stories/2003/03/11/attack/main543610.shtml

You also mentioned that those detained have access to recourse and that some lawyers have filed HC. It has been reported that the prisoners at Gitmo have no access to lawyers. Can you help me out with this?

Finally, I think we should critically evaluate the success of this effort. I remember just one report in the past few years where some successful intelligence was obtained from one of the Gitmo detainees. I think the least the Govt has to do is update the Congress on the status of the detainees, the success of the program and a timeline for the future trials.