If You're Innocent, You Might Be Able to Get the Sentence Reduced to Life

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The Bush administration is circulating a bill that would tweak the rules for trying accused terrorists before military commissions. The New York Times says the new rules include some additional protections for defendants, but after reading the article twice I'm still not sure what they are. Hearsay would still be admissible as evidence, and so would information obtained through coercive interrogation techniques (though not through torture–but remember that waterboarding is not torture). Defendants could still be excluded from their own trials. Instead of starting with standard court-martial procedures and revising them as required to handle terrorism, as several influential senators would prefer, the administration is startiing with the commissions nixed by the Supreme Court and hoping that a few barely perceptible revisions will suffice.

The procedural details may not matter in any case. "Rather than requiring a speedy trial for enemy combatants," the Times reports, "the draft proposal says they 'may be tried and punished at any time without limitations.' Defendants could be held until hostilities are completed, even if found not guilty by a commission." If "hostilities" are not completed until the world is rid of terrorism, suspects can get a life sentence with or without a trial, no matter what procedures are used and regardless of the verdict.

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  1. See, I still don’t get it. If the Gitmo terrorists are enemy combatants why didn’t they just kill them when they had the chance?

    Oh, I know, because they wanted to milk them for information about the BIG T. So they fly them half way around the world, didn’t get any info, and now they can’t let them go because they really are terrorists (or at least the Prez is pretty sure they are), and they don’t want them to go to trial because then some judge will release them, and then they’ll go back to the oasis on camel back only to carry out another attack on the US.

    I’m not taking sides on this issue because I am a bit corn fused. We didn’t give Japanese soldiers taken prisoner on Saipan trials so why are we supposed to put these boys on trial? We had POW camps all over the place in every war we’ve fought in the last 100 years and those prisoners weren’t given trials.

  2. See, this is the kind of thing we need to worry about, not the freedom to gamble online or download music for free…

  3. Commonsewer, what makes you think that they didn’t get any information out of the captured terrorists?

    Just wondering what you’re basing that on… from where I sit, the lack of additional attacks here is strongly indicative that there has been some intelligence of value derived from keeping these folks on ice.

  4. TWC,
    Firstly, you don’t try Prisoner’s of War unless they have committed war crimes, which do not include normal field combat. To address your corn-fusion the reason we didn’t try the Japanese prisioners is because as soon as the war was finished, we released them back to Japan. Same with our German POW’s, Confederate POW’s, Union POW’s, etc.

    However, these are not Prisoner’s of War. Who are we at war with? Congress hasn’t declared war on anybody. We invaded Afghanistan (where most of these boys are from) and have turned it over to a US friendly, semi-puppet government(at least so long as the “Rebuilding Dollars” hold out). In theory, if we had formally declared war against the Taliban run Afghanistan these fellas should have been let go 2 years ago when the Taliban were displaced and the Karzai government was stable. But the President has declared a war on “Terrorism”, an idea, a state of being and it is a war without end. If the administration had it’s way these “Enemy Combatants” would remain in custody until the very thoughts of rebellion, jihad, terrorism and guerilla warfare were wiped from the planet and everybody was living in perfect harmony, US sponsored of course.

  5. See, this is the kind of thing we need to worry about, not the freedom to gamble online…

    Branches on the same tree…

  6. I understand the fear of releasing these people, seeing all we’ve done do them over the past few years, but even Bush has got to realize this judicial black hole doesn’t solve anything, just deteriorates his own position and America’s in the world. Trying them is a farce for the most part. Yes, they were fighting us, and maybe they would continue to fight us, but for the sake of our reputation, we’ve got to end this.

    As far as the reasoning behind us not getting attacked again, because it hasn’t happened doesn’t mean its through any work of the government, but it doesn’t mean its not. We won’t know. But hell, even after the twin towers came down, I knew no good could come from a paranoia driven witch hunt for terrorists. You can’t successfully find the 0.00001% of terrorists from investigating 1% of people. Theres too much. You end up hurting more than helping. Some people feel thats an acceptable price to pay for security, but seeing as I’m more likely to get hit by lightening than killedd by a terrorist action, how about giving up the paranoia and focusing on insulating me during a stormy golf outing?

  7. See, this is the kind of thing we need to worry about, not the freedom to gamble online…

    Branches on the same tree…

  8. from where I sit, the lack of additional attacks here is strongly indicative that there has been some intelligence of value derived from keeping these folks on ice.

    So there hasn’t been an Islamic terror attack on US soil since the World Trade Center attack five years ago, and from this you assume the administration must be doing a bang-up job?

    You could have said the exact same thing about the Clinton administration around 1998: “No Islamic terror attacks here since the one on the World Trade Center! This proves we’re doing a fabulous job!”

  9. Thanks Kwix, that’s helpful.

    I do realize that the POW’s in actual wars (declared and undeclared) were released back to their home countries (except for the Germans who begged to stay) at the end of the hostilities. But, during the course of the war, we did not know when the end of hostilities might be. IOW, on June 1, 1942 the hostilities would have seemed to be ongoing with the only glimpse of an end being some vague time in the future when we hoped to win the war, which wasn’t going all that well right then.

    Don’t get me wrong, I’m troubled somewhat by the kidnapping of foreign nationals which goes back to my earlier point that if they genuinely were enemy combatants in the war zone why didn’t we just shoot them? I know, you can’t shoot people in cold blood. But it seems as though if these people were really that dangerous there would have been a fire fight and they’d be dead.

    Next time I’ll bet there won’t be anything like this. Like child molesters who kill their victims to silence them, our overlords will have learned that it is much more politically expedient to just whack the people like those held at Gitmo.

  10. Like child molesters who kill their victims to silence them

    How damnably sad that our government has reached the point where such an awful metaphor should be so fitting.

  11. Clean, I don’t know anything one way or the other just surmising that since we don’t have Osama’s severed head on display at the Smithsonian that the intelligence pryed out of those guys may not be what we expected.

  12. Like child molesters who kill their victims to silence them, our overlords will have learned that it is much more politically expedient to just whack the people like those held at Gitmo.

    How very true. How much longer before we go from “Enemy Combatants” to “The Miami Seven” to “Treasonous Thoughts and Speech”? If there is to be no Gitmo and the definition of “enemy” is getting more and more loose, how long before we recreate the reign of Pinochet and his legacy of the “Dissapeared”?

    Just because I am paranoid does not mean they aren’t out to get me.

  13. The problem of providing fair trials for terrorist or anyone who works covertly, such as spies, is very difficult. The very secret nature of both the defendant’s supposed actions and the methods used to catch them make it nearly impossible to hold a conventional trial using civil standards of evidence. In American criminal trials, the defense has access to virtually every facet of the investigation. If the prosecution can’t openly demonstrate the provenance of any piece of information they can’t use it. Ditto for witnesses. All this is necessary to keep the government from accidentally or intentionally fabricating evidence or testimony. But how do you carry out such a trial when the investigators and their methods must remain secret?

    The NSA or other signal intellegence groups are not going to reveal in open court how they incepted communications. They might not even want to reveal verbatim what they intercepted or exactly when. Likewise, how about the testimony of soldiers or agents who captured the defendent? They won’t want to reveal their methods nor their identities. The same problems would apply to any physical evidence or third party witnesses.

    From the publics perspective, any open trial would just be a series of government spooks saying “we have evidence the guys a terrorist but we won’t tell you what it is.” This is exactly the same result the public would get with a military tribunal. At least with a secret tribunal some facets of the adversarial system would remain. The officers on the tribunal would have the clearances and experience necessary to investigate the quality of the information provided. Its not a great solution but it is the best we could hope to provide.

    The authors of the Geneva convention recognized this basic problem and solved it by placing a responsibility on combatants to operate in as open a manner as possible. By requiring combatants to be under the orders of some organization, requiring that organization to follow the convention and by requiring that combatants make at least a minimal attempt to differentiate themselves from non-combatents, the convention seeks to make it obvious to all observers whether an person is a lawful combatant or not. The convention explicitly did not seek to protect “spies and saboteurs” i.e. those captured operating covertly. How could it?

    I suspect time will solve the problem in any case. A little over a third of the people ever imprisoned at Gitmo have been released including almost all the Afghans and Pakistani. The rest are the nationals of other countries. About a quarter of those have petitioned not to be returned to their country of origin fearing they will be killed. We will probably thrash around for five more years or so until we decide that the people at Gitmo are no longer an immediate threat and then release them back into the wild. The most dangerous of them probably will be killed by their home countries and that will solve that problem.

  14. What if we just put them in the dunking chair?
    If he drowns, we send him home. If he floats…

    BURN HIM!

    ———-

    Whenever anybody tries to assure me of the gov’t’s fabulous (but necessarily SECRET) prophylaxes in the WoT, the little voice in my head whispers, “Why do elephants paint their toenails red?”

  15. “so would information obtained through coercive interrogation techniques (though not through torture–but remember that waterboarding is not torture).”

    But letting dogs bark at them still is…

  16. We can’t let the Afghanis go until the Taliban stops fighting. At the end of WWII, there was an unconditional surrender, so it made sense to let the POWs go.

    I remain surprised by the complete misunderstanding of the Hamdan decsision. Remarkably, this seems to extend to Hamdan’s lawyer who appeared on Colbert. Well, this lawyer also represented Gore, so maybe he knows the truth, but is just spinning it. Very. Hard.

    The Supreme Court did not say that the tribunals were Unconstitutional. They simply said that they had not yet been authorized by Congress. Now, congress has both declined to invalidate them, and tried to shut up the SCOTUS, so I’m guessing they approve, but they haven’t explicitly endorsed them.

    So, Bush doesn’t need to change the tribunals at all. He just needs formal approval from Congress. Apparently he thinks a few changes will make this easier. THIS is why he’s starting with the tribunals as his basis. Obviously he thinks this format makes sense, for whatever reason.

    You can disagree with him, but don’t think he doesn’t understand what’s going on.

  17. We can’t let the Afghanis go until the Taliban stops fighting. At the end of WWII, there was an unconditional surrender, so it made sense to let the POWs go.

    I remain surprised by the complete misunderstanding of the Hamdan decsision. Remarkably, this seems to extend to Hamdan’s lawyer who appeared on Colbert. Well, this lawyer also represented Gore, so maybe he knows the truth, but is just spinning it. Very. Hard.

    The Supreme Court did not say that the tribunals were Unconstitutional. They simply said that they had not yet been authorized by Congress. Now, congress has both declined to invalidate them, and tried to shut up the SCOTUS, so I’m guessing they approve, but they haven’t explicitly endorsed them.

    So, Bush doesn’t need to change the tribunals at all. He just needs formal approval from Congress. Apparently he thinks a few changes will make this easier. THIS is why he’s starting with the tribunals as his basis. Obviously he thinks this format makes sense, for whatever reason.

    You can disagree with him, but don’t think he doesn’t understand what’s going on.

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