We are getting a little far afield from the topic of this thread. No one should be surprised that some of our friends here would rather deal with tangential issues. The basic gripe was that the United States would suggest that an American judge summarily decide a case based on secret argument, secret evidence and a secret theory of law, secret not only from the preying eyes of the press and the public but also secret from the adversary. That does on its face seem to fly in the face of basic concepts of justice and fairness and in particular the right to confront witnesses and to present a defense. Without that there is no pretense of due process, procedural or substantive. One can’t but hope that the people down at the Dept of J are not remodeling the court room by painting stars on the ceiling. Star Chamber was a bad idea in Stuart England and it is a bad idea in post-Ashcroft America.
So the Saudi legal system dictates the actions of the U.S. Justice Department? Wow, I saw Fahrenheit 9/11 and even I was pretty sure those insinuations were crap. Evidently I was wrong, and the Justice Department requests for “secret legal arguments” proceed directly from the House of Saud.
So, the bottom line is: don’t question the “secret legal arguments,” don’t question what role US officials may have had in keeping an American citizen incarcerated in Saudi Arabia for 20 months in the first place; just be grateful he’s still alive to be charged with anything.
Welcome to the 21st century.
Hard cases make bad law, and cases of treason are the hardest of all.
I don’t want to see anyone tried unfairly, but I am concerned about cases like this and the unique security problems they pose in a country at war with terrorists.
The Zacarias Moussaoui trial is another example of this.
I’m not going to mouth platitudes on any side here. This is a problem, a big one. Presumptions of guilt and innocence present in a courtroom simply aren’t present on the battlefield. And some of these guys want to bring this battlefield uncomfortably close to us.
If anyone has a constructive suggestion, rather than overwrought handwringing, I’d love to hear it.
I certainly can’t get my brain around the idea that the legal argument itself has to be secret and not open to debate. Keep in mind that this guy is a US citizen. I don’t see where the “battlefield” concept comes in here, Mr. Moto. Does anyone have a good news article to link to? The link in the OP is an editorial, not always the best source for objective information.
I have a constructive suggestion. Stop shifting the goalposts. “Gee, allowing the government to present secret arguments in trial, thereby crippling the other side’s ability to respond to those arguments, might just be unfair. But can’t those overwrought handwringers think of some constructive way to protect our liberty?” Silly me, I thought we should have a damn compelling reason before throwing out a key principle of western legal systems.
Here’s another constructive suggestion. Let’s just have two trials! One secret trial, just for the goverment’s lawyers and the judge, where the government can present all the secret evidence and arguments it wants. Then, the trial that both parties actually get to attend. You know, if the first trial didn’t already turn in a verdict in the government’s favour. I’m sure the right to face your accuser will stand up just fine in the face of a precedent.
No wait, I’m sorry…that’s not a suggestion, that’s sarcasm. Also not much different from the situation proposed by the government in the civil case under discussion, I can’t help but notice.
Bricker, you are, and you have always been, a disingenous little turd. Thatt is all.
There are always going to be terrorists, and there’s never going to be a politician who’s going to declare that we’re no longer at war with them, because the war itself is a meaningless platitude. My gut feeling is that there’s really no damage these “terrorists” could do that would be worse than being frightened into setting aside our principles in the name of security, as we have been. But even if it is true, and the terrorist threat is real and ongoing…why should it matter? If having an open judicial system makes us more at risk, then we should do what we can to best protect ourselves while maintaining that transparency. I doubt that many Americans would tolerate some of the judicial shenanigans going on these days if the terrorists came out and directly threatened us to employ them, or else. I’d much rather America work to preserve its judicial integrity, even if it means some increased risk as a result. As an American citizen, that’s my preference anyhow. Perhaps not a constructive suggestion, just my two cents.
I just don’t know enough about the facts of the case.
A little background. In the vast, vast majority of cases where an American citizen is arrested on suspicion of a crime in a foreign country, there is no argument to be made by the US. He’s not our guy, legally speaking, and the only thing the US is obligated to do is ensure that the arresting country has complied with its treaty obligations to make the defendant available to the US consulate. Everything else is optional and falls wholly within the executive’s exercise of foreign policy. This even applies when the US has a tangential involvement in the case, as when a US citizen is arrested in Colombia on drug charges based on intelligence provided by US contractors, for example.
Now here, something else seems to have happened. Mr. Abu Ali was returned before the resolution of the case in the US so we’ll probably never know how the case would have been resolved, but the plaintiff’s allegations at least gave a US District Court Judge pause, so there might have been something worth worrying about. So what could it be?
Here’s a few wild-ass speculations, nothing more, as to what the “secret argument” might have been.
Things which would be bad
The government is engaged in a systematic conspiracy to deny basic rights to defendants who happen to be arrested in other countries.
The government wanted Saudi Arabia to beat this guy up a little bit to extract information from him or to deliver a punishment which the US system could not.
Things which may or may not be good law but which might be reasonable for a prosecutor to argue under the circumstances
We have a secret intelligence-sharing agreement with the Saudis and the argument that the existence of that agreement does not mean that the US is complicit in Mr. Abu Ali’s detention but the government can’t make the argument without disclosing the existence of the agreement.
The Saudis agreed to return Mr. Abu Ali to the United States conditional on us indicting him and we weren’t ready with the indictment. Recall that the last time we told the Saudis to shit or get off the pot when we weren’t ready to indict the guy ourselves the guy went on to bomb our embassies and ships and crash planes into our buildings. The secrecy of this argument is that making it would require disclosing the progress of an indictment which was still sealed.
Things which would be good:
The Saudis wanted to execute Mr. Abu Ali and we were trying to prevent it. Making a public legal argument that we wanted him for ourselves before we worked things out with the Saudis would increase domestic pressure to execute him rather than ‘give in to our demands.’ Essentially, making the legal argument would by its nature make it moot as Mr. Abu Ali would be dead.
We were working out an agreement to trade Mr. Abu Ali for twelve F-15s and a terrorist suspect to be named later and disclosure of the deal would kill it, and perhaps Mr. Abu Ali.
So, again, I just don’t know. I am glad he’s here, indicted in open court and provided with counsel. That vastly increases the chances that if the government did anything improper it will come out in public. (Tragically for our public servants, if we did something good for Mr. Abu Ali the public will probably never know, as his counsel would be insane to admit it and the prosecutor’s side can never fess up for whatever reason they kept it secret in the first place.)
I think that if it ever happens, it should be exceedingly rare. Similarly, I think it should be exceedingly rare for US judges to opine on the criminal justice systems of foreign countries – that should fall to the executive branch in the conduct of our foreign policy.
You are far, far too stupid to even read things which I write, let alone interpret them, you worthless piece of garbage. Go to an A.N.S.W.E.R. meeting and jerk off to some commie porn or something, fuckaxle.
Now that’s a clever idea. If we call it a battlefield we can assume that he is one of these guys and therefore presumptions of innocence aren’t present. And the reason we’re calling it a battlefield is that “these guys want to bring this battlefield uncomfortably close to us.”
I wonder what “platitudes” came to Moto’s mind. The Bill of Rights? Innocent until proven guilty? Equal justice under the law?
Well, I stand corrected. Thanks for the clarification, there.
Nothing to see here. Please move along.
Sorry, I was feeling a bit sarcastic tonight.
FWIW, I thought it was blantantly obvious that you were being sarcastic. AFAIK, there is no regular poster on this board who blames the Iraqis directly for the 9/11 attacks.
Sure, attack me if you want. But I’m raising some valid points, and they should be considered.
Say an American in wartime were to go and join the other side and actively fight against his (former) countrymen. If American forces were to encounter this individual on the battlefield, would the wise course of action be to treat him like any other enemy combatant? And if they do so, aren’t his claims of American citizenship merely a convenient fiction, to be brought out if needed?
Say this individual were captured? What is his legal status? Is he an enemy combatant still, an American traitor, or some lower form of American lawbreaker? In the first case, obviously, constitutional protections don’t apply. They do in the other cases, but treason is still considered to be a capital offense.
What should be done if a criminal case involves military secrets, including the identity and position of American forces? This isn’t something that should merely be shrugged off, especially considering that soldiers have had death threats against them and their families right here on American soil.
These aren’t academic questions in the case of this individual, who, if the indictment is correct, has indeed become an enemy to America rather than an American.
U.S. citizen linked to al Qaeda, plots to kill President Bush.
The protections of citizenship carry with them certain obligations, the least of which is not supporting your country’s enemies. Mr. Abu Ali hasn’t lived up to that minimal obligation, it seems. And while I strongly desire that the legal case against him proceeds with the maximum amount of openness and fairness possible, I have little to no sympathy or mercy for Mr. Abu Ali if he is indeed guilty.
Whoosh. 
Other than the unsupported claim made by Mr. Ahmed Abu Ali, what evidence do you have that his arrest was at the behest of the U.S. ?
I do have an opinion.
That opinion is: I don’t know the underlying facts. I can think of several compelling cases for a secret legal argument to be made. Before you grow faint and swoon, I should point out that the viability of certain legal arguments require factual predicates.
For example, suppose there is a grand jury investigation that treats Mr. Ahmed Abu Ali as a suspect. As you know, grand jury proceedings are secret. Suppose the government’s legal argument is predicated on the premise that the grand jury has received classified information implicating Ahmed Abu Ali in a plot to detonate a dirty bomb at the base of the Sears Tower in Chicago. Now, at a trial, this information is of course subject to cross-examination, attack by the other side to determine its credibility. At the grand jury stage, THERE IS NO RIGHT TO CROSS-EXAMINE. The prosecutor presents evidence. Even if you are a target of the grand jury, you have no right to call witnesses. (Note: this aspect of grand jury procedure considerably pre-dates the Patriot Act).
The disclosure of the classified information would be ruinous to the government’s intelligence gathering capability, because if the government revealed it now, the bad guys would instantly be able to deduce that it could have only come from one informant or from incautious use of cell phones, so they kill the possible informant and stop using cell phones to discuss the plan.
In this example, not only would the evidence itself be secret, but the very existence of the pending indictment would be secret - because the legal argument that a pending indictment existed would reveal an underlying factual basis.
From the link in the OP:
His lawyers say so? Well, that settles everything then. :rolleyes:
According to the judge, the government has not rebutted that evidence. :rolleyes: You wrote a decent enough post earlier. This sort of nonsense makes me think that post was an exception.
Okay, sealed indictments have a long and honorable role as a part of our system, ensuring that the evidence is present to try someone on a felony charge before he or she is arrested and can invoke the Fifth and Sixth Amendment protections. And it would be entirely appropriate to work through that process in cases where national security plays a part. So far, the defenders of what happened are making sense.
But take the two quotes in the OP: the first has no reference to his incarceration by Saudi Arabia, which I do understand has little to do with our legal system. (If they are detaining him in accord with a treaty we have with them regarding them apprehending persons wanted for crimes here, yes it does tie into our legal system, but otherwise, no.) It’s a lawsuit in American courts which is in violation of our “open courts” tradition. There may conceivably be the rare case in which such an action is regrettably necessary, but you’d have to argue long and hard for me to believe that any given case is that exceptional circumstance.
Second, the lawyers among you should be ashamed of yourselves. You know what it takes to make an allegation in open court, what happens if it’s a wild and unsupported one, and what it means for one to go unrebutted. It’s not like some moron posted an anonymous blog or message board post claiming that the whole thing is a part of the Illuminati conspiracy to cover up the Kennedy assassination – to make an allegation of that sort in court means you have to have grounds for doing so; for it to be unrebutted means that counsel for the opposing side cannot or chooses not to present any evidence that contradicts it. As with debates here, there’s a much higher standard of proof expected than for any random claim in a bar or on a random Internet website.
In short, this guy, an American citizen, is getting Fifth and Sixth Amendment protections stripped from him, or at least sincere Justice Department efforts to do so are being presented, and it seems people are willing to go along with that.
WTF happened to “strict construction”? Is this another Rehnqustian case of “all the laws but one”? Or does being alleged to have committed any crime, anywhere, strip all legal protection from people in your views now?
I am prepared to see arguments that protecting America may involve marginal incursions on what would be ideal criminal practice regarding constitutional guarantees, in unusual situations involving our real survival. I am not prepared to see a blanket dismissal of an allegation of a serious trashing of those guarantees.
I look forward to seeing these questions addressed dispassionately by someone who understands and can defend the Administration postiion.