Justice, or show trials?

[tagryn]

I disagree most of the time with Glenn Greenwald, but he made some valid points in his article on the planned trials of the 9-11 masterminds. Specifically: if the type of trial a person gets is dependent on how strong the evidence is against them, can this really be called "justice" or is it just what Glenn calls it, which is a show trial? On the other hand, it would be political suicide for whatever party happens to be in power were a terrorist like Kahlid Sheikh Mohommed to "pull an OJ" and wind up acquitted on a technicality (such as throwing out any evidence that may have been obtained under interrogation), or because they got a loopy jury that was sympathetic to their Islamist justifications for 9-11. OK, lets say that happens: if the plan is to not release them regardless of the trial's outcome, why bother going through the motions in the first place? Then there's the problem of having to produce much more evidence under the standards of a civilian court than a military tribunal, how sensitive intel will be handled, whether Miranda rights are applicable in a place like Afghanistan, etc. etc. Its a mess.

I think folks like Greenwald and Andrew Sullivan have it relatively easy: for Greenwald, there's no debate, every detainee should get a trial, and if they're acquitted, they must be released, period. For Sullivan, all coercive interrogation methods are wrong, regardless of circumstances, as they can't be reconciled easily with his desire for the U.S. to be seen as holding the moral highground among nations. The reality isn't nearly as clean-cut - like I said, the issue is a morass in terms of morality and ethics. I don't have the easy solutions they proport to have, but I also recognize that standing on these rhetorical islands of absolutes are easier than trying to navigate the choppy waters that first the Bush administration, and now the Obama administration, have had to deal with as far as administering justice to those who wish us harm. Of course, neither of the pundits are in danger of having to be actually responsible for the consequences of their stances, since neither are anywhere close to actually being in a position to make those decisions. I'm feeling some schadenfreude that Obama is having to deal with this, after during the campaign being pretty damning of Bush's handling of it, yet finding no easy answers himself. I suspect Obama has a much better appreciation of the pressures Bush was working under, now that he's the one responsible for making the decisions. POTUS is a tough job.

I believe that under our system the standards of justice for U.S. citizens should be somewhat higher than for non-citizens. In ancient Rome, Roman citizens had many more rights under their court system than non-citizens did, and in this respect our system of law is closer to the Roman than to the English system from which our legal system is generally descended. While noncitizens have certain unalienable rights under the Constitution, they are not members of "we the people" and as such there are certain legal rights to which they are not entitled, so I'm OK with not extending the full rights and privileges of the legal system to non-citizens, if that's where we eventually come down on. The obligation to defend a non-citizen's rights (beyond the unalienable ones mentioned in the Constitution) falls primarily to the nation of which they are citizens. There's human rights issues, to be sure (again, "inalienable rights"), but I'm not so certain that things such as full Miranda rights and complete legal representation should fall under that. So, when it comes to these morally murky corners such as how to give justice to Guantanamo detainees, that none (?) of them are U.S. citizens does enter into the equation, as far as I'm concerned.

Discussion on this topic at Winds of Change

Comments

[erikred.livejournal.com]

We're a shining example, not a gated community. We can't just shut off our better aspects because they're inconvenient. Instead, and here's the kicker, we need to find a way to embrace proper behavior and still punish the wicked. It's not pragmatism to go with a multi-tiered justice system when it comes to non-citizens: it's laziness. We can damn well try harder.

And the next time you feel the urge to apply a second-class-citizen-like justice system to a non-citizen, first come here and explain to my wife, a law-abiding, tax-paying, non-citizen paralegal, your air-tight rationale. I'll be sure to call an ambulance for you for when you're done.

[tagryn]

We've had some rather smart people "trying harder" for almost a decade, with each side's experts being given a shot at it, and the best they've been able to come up with is either Guantanamo and military tribunals (Bush) or the multi-tiered justice system being proposed (Obama). You also oppose the alternative of not extending full U.S. legal rights to everyone, regardless of citizenship or situation.

So, then, what is your preferred solution to this problem, specifically?

[erikred.livejournal.com]

So, then, what is your preferred solution to this problem, specifically?

1) Figure out what it is we want to charge people with, if the rather smart people who bought, via bounties, shepherds from unscrupulous foreign intelligence agencies have actually left us with anything _to_ charge people with.

2) Sort out jurisdiction: if it's a crime that occurred against civilian targets (9/11), try them in Federal Court; if it's a military attack against US military targets, prosecute them militarily.

3) Try them as openly and transparently as possible. The Federal Courts handle cases involving state secrets all year round. There are already procedures in place for under seal filings. Utilize those procedures to ensure a fair trial while still preserving state secrets.

4) Abide by the outcomes of the trials. If the verdict is Not Guilty, then the defendants are Not Guilty. Done.

Khalid Sheik Mohammed is being tried for masterminding 9/11; trying him Federal Court makes sense. Abd al-Rahim al-Nashiri orchestrated the bombing of the USS Cole, a military target; trying him in a military court makes sense.

There's no need to step outside of the justice system as we currently have it, even if the accused are filthy foreigners.

[tagryn]

1) In a lot of cases, these people were either captured on the battlefield or in raids without proper warrants, and weren't read their Miranda rights at the time. Will application of full rights apply retroactively to them as well? If not, there's your two standards of justice again, this time dependent on when and where the person was captured.

2) How about a plot to carry out suicide bombings that have a mix of civilian and military? What about plots that are still undefined in focus when disrupted? Also, how does this satisfy your objection about a multi-tiered justice system, considering the standards for a military tribunal are different than in the civilian system?

3) "As possible" is a nice qualifier, but once you go down the sealed evidence route, you've already violated the ideal of a witness having the right to face their accuser, assuming they and their attorneys aren't allowed full access to the intel which they're being accused with. And the more a secret is shared, the odds of it remaining a secret go down significantly.

4) Most will be set free, then, as I said in #1, since standard evidence procedures probably weren't followed at the time, and it is difficult to do things like brushing for fingerprints, going to a judge for search warrants, etc. in lawless places like Afghanistan or Somalia.

Its a idealistic plan, but unworkable. The effect will be more or less the same as if you just set everyone in Guantanamo and Bagram free, and just doing that outright would be simpler for everyone (if politically impossible, and dangerous to boot).

[erikred.livejournal.com]

Small point of clarification: Miranda v. Arizona holds that the so-called Miranda Warning must be given to a person in custody before questioning begins. In the case of individuals like KSM and battlefield arrests, the arresting officers based their cases not on confessions or self-incrimination but on either other witnesses' corroborations or the arresting individual's testimony ("I saw this man fire an AK-47 at our troops."). Now, if the prosecutors want to use confessions to prove guilt, they will also need to demonstrate that the arrested were advised of their rights under Miranda before questioning took place. So: no, despite what we see in the movies, lack of Miranda Warning will not get these guys out of jail free.

Further, as for proper warrants, IANAL but you may want to review when warrants are required for arrests. If an individual with law-enforcement powers witnesses a crime in progress (mortar fire from a bunker), he does not need a warrant to arrest the suspects (anyone in the bunker). It is up to the prosecutors to secure evidence that a crime was indeed committed, but generally eyewitness accounts by law-enforcement trump "It warn't me, I din't do nuffink" on the part of the accused.

As for 2), how do we currently handle this for Americans who do these things? Now, I'll tell you what I would like to see: what charges are being leveled against whom. Then we could kvetch about what's really happening as opposed to what we're afraid might happen.

3) Your objections here ignore years of cases against drug lords and organized crime.

4) You simply do not know that this is what will happen. I appreciate that this is what you are afraid will happen, and I will grant you that it's possible that this might happen in some of the cases, but where we differ is that I believe that we are morally obligated to apply our system of justice to people we've arrested and see what happens from there. Skipping trials because we're afraid of the results is no way to achieve justice.

[tagryn]

I've thought about this more. The real problem may not be so much with cases such as KSM, but with the guys who (I suspect) make up a majority of the detainees at Bagram and Guantanamo: non-uniformed combatants who were captured on the battlefield. They aren't members of an army, and aren't affiliated with a particular state. Their "crime" will in most cases be fighting U.S. troops while not uniformed ("unlawful combatant" status), which to my ears has the uneasy ring of "victor's justice."

Stratfor has put up a detailed article on this issue which discusses this as well as the problems with trying KSM in criminal court. Not surprisingly, they do a better job than I have with identifying the issues at hand.