I don’t know what that evidence is, but must point out that evidence alone doesn’t necessarily lead to one conclusion only.
The fact that such evidence is unrebutted is proof of absolutely nothing.
I’m not a lawyer, as most of you know. And while I do understand as much of the law as a layman might reasonably be expected to, and use such understanding in my posts, I will readily defer to genuine lawyers on these points.
I would especially like to know how cases involving legitimate national security concerns might proceed. Case law is quite muddled here, and while Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla have modified the precedent somewhat, my understanding is that ex parte Quirin still is enforceable law.
We don’t have enough information to say whether the particular (non)argument given by the government in this case is or would have been justified, but we do know that this is already an “exceptional circumstance.” As I mentioned, in the vast vast majority of cases of US citizens held by a foreign country held for a crime against that country’s laws, there’s no “argument” to be made at all. “He’s not our guy, judge.” “OK, case dismissed.”
As you made clear you understand, “unrebutted” != “unrebuttable.” Note that the government’s filing regarding the “secret” legal reasoning (which appears to have been disclosed to the judge, just not to the defense attornies) came after the sealed indictment was handed down but before Mr. Abu Ali was returned to the United States and the indictment unsealed.
I don’t think anybody here has alleged that it’s impossible that the government was up to no good here, rather that a reasoned best guess on the available evidence indicates a probable motive much less sinister than it would seem to some on first glance.
See, that seems to be the core difference between our positions. I want a compelling concrete reason before I accept throwing fair trials out the window.
I think we both agree “things which would be bad” shouldn’t be used to justify this, so let’s move on.
“We have intelligence from a source we cannot disclose.” Since it seems we’ve already collectively held our nose and said secret evidence is alright, why does the argument itself have to be secret in this case?
And just how many terror suspects have we held without formal charges in the last few years? Why should I believe holding Mr. Abu Ali without an indictment would give the U.S. government even a moment’s pause?
Why would the government feel it necessary to present this argument at the civil trial at all, let alone in secret? As I understand it, Mr. Abu Ali’s family is charging that the Saudi’s arrested Mr. Abu Ali at the U.S. government’s request. So either
(a) This is false, in which case the U.S. can say “this is false”…no need for secret arguments.
(b) This is true, and the U.S. request the arrest becasue they were planning to indict Mr. Abu Ali but weren’t yet ready to do so. Which would demonstrate a stunning lack of competence on their part, and doesn’t justify secret arguments.
(c) This is true, but the U.S. did not have plans to indict when they requested the arrest, or else the reason for the request was independent of the indictment plans. In which case such an argument as you propose is irrelevant anyway.
Why the hell does this justify making secret arguments in a trial over whether or not the U.S. requested his arrest? Again, either they requested the Saudis took this action or they didn’t. If they didn’t, this argument is irrelevant to the civil trial anyway. If they did, then why are the Saudis hypothetically wanting to execute him?
If the U.S. did not request that the Saudis arrest this man, then this argument is irrelevant to the civil trial. If the U.S. did request that the Saudis arrest this man, and offered the Saudis twelve F-15s and a terrorist suspect to be named later, then the government has apparently decided that it didn’t have enough evidence to just convince the Saudis to hand him over and decided the Saudis had to be bribed instead. Which is problematic enough in and of itself that it doesn’t justify such extraordinary measures as secret legal arguments to cover up that fact.
I’ll try to keep my composure :rolleyes:
Nope, no dice. You’re suggesting that merely saying “there is an indictment in the works” or “there is a grand jury investigation underway” might allow hypothetical terrorists to deduce (a) that evidence exists, (b) the nature of that evidence, and (c) the source of that evidence.
(a) is plausible. But our hypothetical terrorists already know that Mr. Abu Ali was arrested. If the Saudi arrested Mr. Abu Ali for their own reasons…i.e. if the U.S. did not request his arrest, or if his arrest was independant of any U.S. request…then the argument is completely moot and doesn’t even need to be made. If the Saudis didn’t arrest him for their own reasons, then the hypothetical terrorists probably already figure out that someone, somewhere, had evidence against him.
But (b) and (c), on the other hand, are a giant leap. The only way someone could figure out the source and nature of evidence against Mr. Abu Ali merely from the existence of an investigation against him is if there is only possible source and nature of evidence. In which case they can figure that out, and probably will, even without the knowledge of the existence of an investigation.
In short, your hypothetical argument doesn’t reveal sufficient information to endanger intelligence channels that would otherwise be unendangered. Try harder.
How is ex parte Quirin (linkity-link for the rest of us non-lawyers) relevant to a civil trial between the family of Mr. Abu Ali and the U.S. government? Mr. Abu Ali may be an “enemy combatant”. But his family haven’t been charged with anything. What compelling concrete reason is there for the government to move to dismiss charges by Mr. Abu Ali’s family without even presenting their arguments in open court? Why shouldn’t the U.S. government have to answer to his family…presumably U.S. citizens as well…in a fair trial?
Not at all. But “there is a grand jury investigation underway,” is not likely to be a compelling legal argument. “There is a grand jury investigation underway, and it reveals Ahmed Abu Ali to be a conspirator in a plot, but the grand jury is not ready to indict,” is potentially a compelling legal argument. The defense could then claim, “No, the grand jury is not considering an indictment,” or “The grand jury doesn’t have enough evidence to indict,” which would put the GJ transcripts at issue.
The very point I’m making is that to rebut this claim requires the US to produce evidence which is classified.
the crux of the biscuit as it were.
as a lawyer in our system of jurisprudence, does it not fly in the face of all what you believe in to allow this “just trust me on this” type of strategy?
I apologize for the confusion. This post was an invitation to discuss further some of the points I raised back in post #34.
I dunno, Rick. I’ve got to fall on the ‘civil liberties’ side of this. Secret arguments strike me as one of those ‘thin end of the wedge’ things that could easily be abused by the government. And I, for one, am not of the ‘trust the government to do right’ side of the ledger.
Which should put me in line with the more conservative camp, shouldn’t it? Usually it’s lefties saying the ‘father knows best’ drill.
If the government couldn’t indict or prosecute without using classified evidence then they’re faced with a difficult decision…blow the cover or don’t indict. I can’t get past the fact that for a fair judicial system the accused has the right to face his accuser and the evidence and arguments against him.
There’s no “just trust me on this” going on here. The evidence is being presented to an impartial judge, who gets to make the decision on the merits of the case. So there is some “just trust the judge on this” going on, but that goes on in every case.
Again, I’m troubled by the presentation of evidence with no opportunity for rebuttal, but let’s not paint this as the government convicting someone totally without evidence.
Right now in Europe, hundreds of Al-Quaida operatives are being arrested, detained, tried, and either locked away or released in public trials and through the regular operation of the criminal justice system. You know, it is illegal to be a terrorist. Our own LEA’s had knowledge that could have potentially stopped the 9/11 attacks, and this information was gathered prior to the proliferation of, “stop the terrorists at all costs,” attitudes.
I have no interest in giving the government more power to summarily suspend legal rights which seem to have worked out okay for the past 200+ years. We can focus on more effecient and effective LEA’s if we choose, but we shouldn’t give up all our rights for the appearance of slightly more safety.
“Just trust the judge to make an informed decision based upon the argument of both parties” goes on in every case. But this is different. A trial is a venue in which two disagreeing parties both present their arguments to an impartial third party, be it judge or jury. But now the government is suggesting that a judge is qualified to make a decision about the merits of an argument after hearing from only one party. To decide whether or not the government’s arguments are valid without hearing rebutting argument is not the responsibility of judges. To decide between opposing arguments is.
There’s irony in this, in our current “down with activist judges!” environment. Trusting judges to decide the constitutionality of laws after hearing arguments from both sides apparently is bad, but trusting them to decide the merit of government arguments on their own without the chance to hear a rebuttal from an opposing advocate is…hunky-dunky?
Then let’s paint this as the government presenting evidence and arguments without the chance of rebuttal, which is bad enough.
Compelling legal argument for what? For saying “Yes, we told the Saudis to arrest this guy, but his family shouldn’t complain because we’re going to indict him eventually, we’re just not ready yet”?
Again, did the Saudis arrest this guy at the request of the U.S., or not? We’ll probably never know. But if they didn’t, then this argument is irrelevant, and if they did, this argument just ignores the giant elephant in the room. Namely, why did the U.S. make the request before they were ready to indict, and when the grand jury still isn’t ready to indict by the time this comes up in civil court? Isn’t that called “arresting someone on insufficient grounds”?
So, what is our hypothetical situation now? That some grand jury was investigating Mr. Abu Ali, wasn’t ready to indict, but had the Saudis arrest him anyway, and now they still aren’t ready to indict but they want the district judge to dismiss his family’s complaint because they were investigating him, really they were, and if they said in court that they were investigating him but weren’t ready to indict then the opposing counsel might ask to see the evidence they did have (which presumably wasn’t enough to indict with then, because they still aren’t ready to indict now), and that would endanger intelligence channels?
If that’s the government’s secret argument, then I think the judge should decide in favour of Mr. Abu Ali’s family. And I sincerely hope we never throw out the principles of open trials just to protect the government’s abilities to have people taken into custody before they’re ready to charge them with anything.
I, personally, don’t give much of a rat’s ass whether their motive was “sinister” or not, I give a rat’s ass about the fact that I don’t know what their motive is. Because it’s the possibility of any administration, now or in the future, to use such a precedent for whatever damn motives they feel like that’s my concern. Before I trust any government to knock out a significant check on executive power like this, I want to see a damned good reason. “Just trust us” doesn’t cut it for me either.
You are aware, are you not, of the procedural class ex parte? What does it mean?
Well, of course. And they’re being arrested, detained, tried and either locked away or releaesed in public trials through the operation of the criminal justice system here in America, too.
But European countries have also used the methods being criticised here. For example (emphasis added):
[Inigo Montoya]“The 9/11 Report … I do not-a think it means what you-a think it means.”[/IM]
A valid point. We do trust judges currently to make decisions after hearing only one set of arguments in certain circumstances such as the issuing of warrants and the issuing of restraining orders. It was incorrect of me to imply that we don’t currently trust judges to ever make decisions based on only one set of arguments.
Now, convince me that we should trust judges to make decisions on the merits of an argument without rebuttal in these circumstances, namely where the party being kicked out of the room is the party that brought the suit in the first place. 'Cause you sure haven’t convinced me yet.
(Oh, and for those who don’t want to play “Mr. Bricker’s Latin Class”, ex parte in a legal context means “for one party only”. Why Bricker didn’t just say “We already trust judges to make decisions after hearing only one set of arguments, such as in the issuing of warrants” is beyond me.)
**threemae, don’t overreact. Take a chill pill. Remember, it’s just one guy. And he’s probably guilty of something, anyway. Try to consider the issue with the cool detachment that wiser heads have adopted:
You see? It’s an exceptional circumstance. Such a precedent wouldn’t really count, since it’s so vanishingly unlikely that the opportunity to claim “secret arguments” would ever occur again. It’s really remarkably cynical of you to imply that the government would ever abuse this principle, since this has never happened before in recorded history. Where’s your sense of trust? For now, it’s really far too early to form an opinion. We should wait and see if the government attempts to secretly indict another citizen, or several, before we consider our course of action. A few dozen at most.
'Cause ex parte has only seven letters.
Ah, economy of presentation. I prefer clarity, but maybe that’s just me.
But hey, as long as you feel like slingin’ Latin around, is there a class of procedures where only one party makes arguments and the other party never even gets to hear them? 'Cause it occurs to me that even in the case of issuing a warrant, the other party (namely the person getting arrested) eventually gets to know why the warrant was issued. Ex parte doesn’t seem to cover that particular angle.
I find it fascinating that the people who insist the government can and must be trusted to prosecute the war on terror without legal or procedural oversight are the same people who begrudge the same government every penny of tax revenue because said government cannot be trusted to spend the money effectively. Most odd.
And, if convicted, Secret Probation?