Secret Detention, Secret Evidence, [i]Secret Arguments[/i]???!!!

[annaplurabelle]

From WaPo:

Injustice, in Secret

ATTORNEYS FOR the Justice Department appeared before a federal judge in Washington this month and asked him to dismiss a lawsuit over the detention of a U.S. citizen, basing their request not merely on secret evidence but also on secret legal arguments. The government contends that the legal theory by which it would defend its behavior should be immune from debate in court. This position is alien to the history and premise of Anglo-American jurisprudence, which assumes that opposing lawyers will challenge one another’s arguments.

My emphasis.

This is in re Ahmed Abu Ali - a US citizen (!) - who we now know has been held since June 2003 in Saudi Arabia:

In this case, the liberty of a U.S. citizen is at stake. It is not clear what role the U.S. government played in his arrest, nor that he is innocent. What is clear is that Mr. Abu Ali has been held for 20 months without being charged and that, as Judge Bates wrote in December, his lawyers “have presented some unrebutted evidence that [his] detention is at the behest and ongoing direction of United States officials.” It should be unthinkable that the courts would resolve this matter without hearing from both sides on key legal questions. It should have been unthinkable for the government to propose such a step.

Read it (the whole thing) and weep.

I didn’t see a thread about this, so here it is. I’m putting it in the Pit, because I think this is some serious shit (and I don’t want to worry about using physiological metaphors, which are not allowed in GD).

What the fuck is going on?

It’s not just Jose Padilla anymore, is it… How do we know how many more are being held, or will be held, using the same argument???

Will anyone here defend this? SDMB lawyers??? Anyone???

[manhattan]

You’ll be pleased to know that Mr. Abu Ali was extradited to the United States and charged today on an indictment which was returned on February 3.

[Frank]

@manhattan

You’ll be pleased to know that Mr. Abu Ali was extradited to the United States and charged today on an indictment which was returned on February 3.

Which should have happened a year and a half ago, assuming of course, that the accusation that the U.S. is responsible for his detainment is accurate.

[annaplurabelle]

@manhattan

You’ll be pleased to know that Mr. Abu Ali was extradited to the United States and charged today on an indictment which was returned on February 3.

Pleased???

Please.

What part of the OP, especially re “secret arguments”, did you not understand?*

• (No italics in thread titles. Got it. Sorry.)

[manhattan]

Which should have happened a year and a half ago, assuming of course, that the accusation that the U.S. is responsible for his detainment is accurate.

That may come out at trial or during pre-trial proceedings. According to the Times, the Saudis originally arrested Mr. Abu Ali on suspicion of crimes domestic to that country, specifically a bombing which killed 30 people. The US asked the Saudis to indict him there or extradite him here about three weeks ago. So it may be that the “secret argument” was 'we’re trying to get him here alive, if that’s OK with you folks." Or maybe it was something much worse. We shall see. In any event, the concerns which precipitated the OP are now over with and Mr. Abu Ali is safely in US custody.

APB, you should be pleased that Mr. Abu Ali has been returned to the United States and charged in a proper US indictment rather than having been left to the tender mercies of the Saudi judicial system to answer for the crime with which he was originally arrested.

[Orbifold]

@manhattan

APB, you should be pleased that Mr. Abu Ali has been returned to the United States and charged in a proper US indictment rather than having been left to the tender mercies of the Saudi judicial system to answer for the crime with which he was originally arrested.

That is an improvement, yes.

Now, out of morbid curiosity on my part, do you have opinion on the U.S. government’s attempts to dismiss the civil lawsuit filed by Mr. Abu Ali’s family based not only on secret evidence but also on a secret legal argument? Do you think the government should be able to present legal arguments in court cases without giving opposing council the chance to review those arguments?

[Frank]

@manhattan

That may come out at trial or during pre-trial proceedings. According to the Times, the Saudis originally arrested Mr. Abu Ali on suspicion of crimes domestic to that country, specifically a bombing which killed 30 people. The US asked the Saudis to indict him there or extradite him here about three weeks ago.

Well, I’ve finally been inspired to register to the N. Y. Times.

All that you say could easily have been game playing. Anybody can be arrested on suspicion of anything. I will note that this is accurate:

Last July, Mr. Ali’s parents sued the federal government, contending that the Bush administration had unlawfully had the Saudis hold their son and interrogate him about terrorist plots. The suit, filed in federal court in Washington, asserted that the administration could secure Mr. Ali’s release simply by asking the Saudis to free him.

As soon as we asked, they gave him up.

I’ll also note that the link to the Post is to an editorial, and I find its arguments compelling.

[annaplurabelle]

@manhattan

APB, you should be pleased that Mr. Abu Ali has been returned to the United States and charged in a proper US indictment rather than having been left to the tender mercies of the Saudi judicial system to answer for the crime with which he was originally arrested.

A crime he was arrested for “on suspicion”, which did not lead to evidence of such after 20 months in custody.

Is that the best you can do? Again, what part of the OP did you not understand?

<on preview> What Orbifold said.

[Nightime]

Judge Bates is cautious and generally deferential to government concerns. Yet he was evidently disturbed by this argument, at one point asking whether the government could identify “any case in which . . . even the legal theory for dismissal is not known to the other side?” The government could not.

The impression I got from the OP (though the OP never mentioned it, and certainly not in the thread title) was that the secret arguments themselves were problematic; That the practice of using a secret legal theory, not known to the other side, to dismiss a case was dangerous.

[DanBlather]

I think anything we can do to catch the Iraqis responsible for the 9/11 attacks that were perpetrated by Saddam Hussein is justifiable.

[Reeder]

@DanBlather

I think anything we can do to catch the Iraqis responsible for the 9/11 attacks that were perpetrated by Saddam Hussein is justifiable.

Is that really your belief?

[Frank]

@Reeder

Is that really your belief?

I don’t think so. I did a “find all posts” on him. Is it still a woosh if one has to read some old posts to be sure one is not being wooshed?

[groo]

@DanBlather

I think anything we can do to catch the Iraqis responsible for the 9/11 attacks that were perpetrated by Saddam Hussein is justifiable.

Heh…

[Age_Quod_Agis]

@annaplurabelle

A crime he was arrested for “on suspicion”

Here in the US, everyone is arrested on “suspicion.” Or do you suppose that guilt is determined before arrest?

@annaplurabelle

which did not lead to evidence of such after 20 months in custody.

Then how do you suppose they got an indictment? Sorcery?

I think this is one of the tremendously unfortunate side effects of forcing the US government to treat the conduct of war – formerly within the Executive’s sole discretion – in the same manner as domestic law enforcement. By forcing the Executive to submit its wartime activities to the Courts for approval, the Courts have forced the Executive between a rock and hard place.

It sucks, but the US government is probably not going to willingly part with more of its war and intelligence secrets than absolutely necessary. Nor do I think the US government is going to abdicate its responsibility to protect Americans from terrorists. It looks to me like they’re trying to walk the tightrope between the two.

Frankly, I have no idea what the answer is. I think a public airing of state secrets is probably not the answer; nor do I think arguments should be beyond response; nor do I relish the idea of letting terrorists go. But I breathe somewhat easier now that the Courts and government appear to have reached a point where the evidence against this man is likely to be public.

[Blalron]

@annaplurabelle

How do we know how many more are being held, or will be held, using the same argument???

Shhhh… they can’t tell you. It’s a secret. :smack:

[Frank]

@Age Quod Agis

Here in the US, everyone is arrested on “suspicion.” Or do you suppose that guilt is determined before arrest?Then how do you suppose they got an indictment? Sorcery?

The indictment in this country is not related to the crime he was “suspected of” in Saudi Arabia.

I think this is one of the tremendously unfortunate side effects of forcing the US government to treat the conduct of war – formerly within the Executive’s sole discretion – in the same manner as domestic law enforcement. By forcing the Executive to submit its wartime activities to the Courts for approval, the Courts have forced the Executive between a rock and hard place.

Where is the declaration of war? The sole responsibility for which is granted to Congress in the Constitution?

[Bricker]

The Saudis arrested him. Pit the Saudi legal system.

[Orbifold]

@Bricker

The Saudis arrested him. Pit the Saudi legal system.

Why yes, the Saudi legal system is problematic, isn’t it.

My, yes.

Now, out of more morbid curiosity on my part, let me ask you the same question I asked manhattan, with some additional emphasis (and one spelling correction). Do you have opinion on the U.S. government’s attempts to dismiss the civil lawsuit filed (in the United States, no less) by Mr. Abu Ali’s family based not only on secret evidence but also on a secret legal argument? Do you think the U.S. government should be able to present legal arguments in U.S. court cases without giving opposing counsel the chance to review those arguments?

[Frank]

@Bricker

The Saudis arrested him. Pit the Saudi legal system.

Oh good, Bricker. Way to completely ignore what the thread is about. I would have expected better from you. I would have been wrong. He is not the first person to be consigned at the behest of the U.S. to another country’s justice system simply because they don’t have the safeguards we do. You can’t be that naive. Can you?

[Age_Quod_Agis]

@This Year's Model

Where is the declaration of war? The sole responsibility for which is granted to Congress in the Constitution?

It’s in the same place it was in Panama, Grenada, Somalia, Vietnam, Korea, Bosnia, Haiti, etc.

The President’s powers as Commander in Chief are not activated only upon a Congressional declaration of war. The President is the Commander in Chief with respect to all enemies foreign and domestic, even in times of peace.