Democrats & Liberals Archives

Secret Evidence Should Be Admitted in Terror Trials

As a dyed-in-the-wool libertarian liberal, I find myself in the odd position of agreeing with the Bush administration about a disputed matter of criminal procedure. The issue is whether the prosecution in a terror trial can introduce so-called “secret evidence” that isn’t shown to the defense.

The crux of the matter is how to you put someone who is believed to be (but may not be) a member of a terrorist organization on trial. Any trial worth the name is going to put the burden on the prosecution to prove their case, and that means that a few actual terrorists or fellow-travelers may go free. This introduces a practical problem – if they are given secret information, there will be no stopping them from sharing it after they are released.

Now, under no circumstances should the evidence in a trial be entirely secret. No defendant should face the Kafkaesque predicament of defending himself from charges without knowing exactly what they are. To be a little clearer, here is a fictitious (and no doubt naively written) exchange from what I would deem to be a fair trial:

Prosecutor: Did you not try to sell Stinger missiles in Kabul on April 23rd at 8 pm, as our informant told us?

Defendant’s lawyer: Objection! We want to meet the informant and cross-examine him.

Prosecutor: The informant’s identity is secret. If we disclosed it his family would be murdered. The judge knows his identity.

Judge: Objection overruled.

The defendant does not have all of the information, but at least he has a shot at defending himself. If he was home at Kandahar with his mother watching “Everybody Hates Kamal”, he can say so and provide his own witnesses. He might miss the opportunity to tell the judge that the informant has a grudge against him, but life isn’t always fair. He would have to count on the judge to be appropriately skeptical. In particular, the judge would have to be alert to the possibility of the prosecution keeping evidence secret solely to keep the defendant from challenging it.

It should be realized that secret evidence is far from a novel concept, but is common in espionage trials. Readers may recall Jonathan Pollard’s trial for espionage in 1986, in which Casper Weinberger filed a secret 46 page memorandum with the judge shortly before sentencing. The memorandum wasn’t shown to Pollard’s attorneys, and it remains secret to this day. This was the trial of an American citizen born in Galveston, Texas*. Procedures that are acceptable for an American-born alleged spy should suffice for a typically foreign-born alleged terrorist.

One way to slightly help the defendant would be to give him a court-appointed and trusted American lawyer and let that lawyer see the secret evidence. This would put the lawyer in an awkward position, however, because he would have to be careful not to disclose any secret information to his client, even by accident. There is really no safe way to give full information to the defense.

Posters who have a problem with secret evidence should consider what the alternatives are. An open trial of the sort that an ordinary criminal defendant gets is simply not on the table. A trial with secret evidence is the best realistic scenario that a civil libertarian can hope for in this case.

*What is it with these Texans: George Bush, Jonathan Pollard, Tom Delay, Dan Rather… You can’t trust these guys to give you the time of day. ;) Actually, one of those guys isn’t a real Texan. Guess who.

Posted by Woody Mena at September 10, 2006 8:26 AM
Comments
Comment #180273

That would be GWB.(not the real Texan)

Woody, if a terrorist did go free(which I highly doubt), wouldn’t the athorities love for him to go back to his home boys so that they could follow his trail?

Posted by: mark at September 10, 2006 9:36 AM
Comment #180274

As long as there is oversight… with the Judge knowing the information and why it is being kept secret, then I don’t have a problem with someone being tried and/or convicted using secret information or testimony. The balancing act is allowing the judge involved with the case to be the arbitrator of what is allowed to be kept secret and what must be allowed to be aired. For the State to keep all of the information secret from everyone involved in the case hardly allows for judgement against the defendant… and given the past track record of the State’s intelligence… someone needs to be able to go over the evidence.

Posted by: tony at September 10, 2006 9:38 AM
Comment #180281

Mark,

It would obviously be nice if the released guy went and talk to his buddy OBL. There was an Orson Welles movie called the The Stranger where a high-level Nazi is exposed that way. In real life, people are usually smarter than that.

If he just passed info down the grapevine, you would have to follow everyone he met, and everyone those people met, and everyone THOSE people met…

Posted by: Woody Mena at September 10, 2006 9:53 AM
Comment #180289

Woody,

I’m afraid I have to disagree with you. Confronting your accusers has long been a theme of our judicial system. Without full knowledge of the charges and witness accusing one of a crime, then the system breaks down and falls to the decisions of the judges and prosecutors.

“In camera” or secret cases are available , and they are usually done when matters of national security are at risk. However, even in these cases, the defense is generally apprised of all evidence against their client. There are safeguards against information being made public. Attorneys do not want to get disbarred and defendents and witnesses can be admonished under penalty of contempt citations to remain silent.

I’d prefer this route to allowing the government to accuse someone of a crime without disclosing the evidence. The burden of proof is on the prosecution as it has been since our due process procedures were formed. I’d hate to see that changed.

Posted by: Dennis at September 10, 2006 10:47 AM
Comment #180291

No, I am sorry, but, when we allow people to be tried without ever knowing what the evidence against them is, we are talking KGB tactics. Where I can see a need for secrecy in some matters, I only see two options here, number one the person is in fact guilty and therefore already knows these secrets, or number two he is not guilty and therefore we have nothing to fear from him. If we are so afraid that we cant give everyone a fair trial and due rights then the terrorists have already won. In my opinion, when we kidnap people, hold them in secret prisons for years, and never give them the right to defend themselves we are no better than the terrorists, and we are only helping their cause, as we are proving to the world that we are no more concerned with basic human rights than they are.

Posted by: jim at September 10, 2006 11:03 AM
Comment #180294
In my opinion, when we kidnap people, hold them in secret prisons for years, and never give them the right to defend themselves we are no better than the terrorists, and we are only helping their cause, as we are proving to the world that we are no more concerned with basic human rights than they are.

This is where we agree!!! I think these guys deserve trials. I don’t think we should have secret prisons. I just think allowance should be made for secret evidence.

You are making a false dichotomy between being completely naive and knowing everything. I think I gave a good example of not knowing who informed on you.

Posted by: Woody Mena at September 10, 2006 11:17 AM
Comment #180296

Dennis,

Contempt of court?! You’ve gotta be kidding. Sure, a lawyer is going to be swayed by those kind of threats, but an al Qaeda agent?

Posted by: Woody Mena at September 10, 2006 11:22 AM
Comment #180297

I again have to say no, one of the basis of a fair trial is the right to face your accusers, that is why the witness protection program was created, there is no reason it cant be used here.

Posted by: jim at September 10, 2006 11:29 AM
Comment #180298

I object! I’m from Ohio originally, but having lived in Texas since 1977, I’m claim real Texan status. I’m not eager to claim GW, mind you, but he is a Texan, just one that is a jerk.

Posted by: gergle at September 10, 2006 11:38 AM
Comment #180300

Gergle, ROFLMAO, well said!

Posted by: jim at September 10, 2006 11:41 AM
Comment #180301

“As soon as Congress acts to authorize these military commissions, we will prosecute these men and send a clear message to those who kill Americans: No matter how long it takes, we will find you and bring you to justice,” Bush said in his weekly radio address. “As we bring terrorists to justice, we’re acting to secure the homeland.”
— BUSH

OK, but there are already courts set up, and Constitutionally-approved ways to bring these suspect to justice. So, why not work within the system and prosecute these people quicker (and send out the message to others sooner…)? Why the delay? Bush hasn’t made the case of issues with existing systems - he has never used the existing systems. Is there any other reason other than the sole focus of expanding his own authority? At some point, shouldn’t prosecuting these people over ride the needs of power from the President?

Posted by: tony at September 10, 2006 11:56 AM
Comment #180302

Dennis,

Contempt of court?! You’ve gotta be kidding. Sure, a lawyer is going to be swayed by those kind of threats, but an al Qaeda agent?
——————————

Actually, no. Contempt of court citations can land you in prison on an open ended term. In effect, you can be kept in jail indefinitely. Also, I would expect, that if we actually brought a member of Al Qaeda to trial that the prosecution would have enough evidence for a convication. I wouldn’t want to be the DA or ADA trying a case against Al Qaeda and let the defendent off because of an ill prepared case or one that didn’t have sufficient evidence to gain a conviction. Would you?

Posted by: Dennis at September 10, 2006 11:57 AM
Comment #180303

gergle,

Who am I to argue…

Jim,

I don’t know exactly what these guys do when someone rats them out, but I suspect that a Witness Protection Program wouldn’t cut it. Maybe more like a Village-You-Grew-Up-In Protection Program…

Still in principle, any realistic way to limit the use of secret evidence is great with me. I just don’t see how you could cover every case. It may not just be one witness, for example, but a whole intelligence network.

Posted by: Woody Mena at September 10, 2006 11:57 AM
Comment #180305

if you are given information by an informant would it not be best to check the accuracy of the information such as where was the accused during that time what were his contact and so on.
if you are interested in protcting your citizenry you do not depend on informers you use them to get the evidence.
the attack on iraq was based on false info by infomers you would think we would learn.

Posted by: albert at September 10, 2006 12:00 PM
Comment #180306

Gergle:

A “real” Texan wouldn’t be caght dead enrolled at Yale. He must have skipped his political science class!

Posted by: ChristianLeft at September 10, 2006 12:00 PM
Comment #180307

” I just don’t see how you could cover every case. “

That’s why I like having the control of evidence the hands of the judge trying the case. The government can make it’s case for keeping information secret, and the defense attorney can make the case for due diligence… and the judge makes the final decision.

Posted by: tony at September 10, 2006 12:02 PM
Comment #180308

Tony
I agree completely, if there is a fundamental flaw in our court system then we should address it, but, giving more power, and allowing them to use it in secret, to an administration that most Americans already don’t trust, and don’t trust with good reason, I can not see as the path to democracy, or insuring that we assure basic human rights for all world citizens.

Posted by: jim at September 10, 2006 12:04 PM
Comment #180310

Dennis,

The whole point of these trials is supposed to be the clear out the prisons. Some cases are going to be weaker than others.

Re the contempt thing: Let’s walk this through. A guy goes on trial, learns from secret information, and is let go. He goes back to his home country, or say Detroit, and spills the beans. Through some miracle, he actually gets caught and charged with contempt. What does he care, he’s a martyr. If being locked up for contempt doesn’t score you the full 72 virgins, it should at least merit one really hot one. ;)

Posted by: Woody Mena at September 10, 2006 12:05 PM
Comment #180311

Tony how do you know that the judge doesn’t have his own agenda?

Posted by: jim at September 10, 2006 12:07 PM
Comment #180312

“that is why the witness protection program was created, there is no reason it cant be used here.”

Jim,

I agree with you. I also realize that in some cases it may mean relocating dozens of extended family members.

Also, it’s very difficult to “convict” anyone based solely on a single witness’ testimony. Quite often cases are built around anonymous informants (aka snitches) but the strength of the case lies in the evidence gathered.

I’m personally not opposed to JAG handling these cases. Sharing ALL info with members of JAG, both the prosecution and defense, should serve the law while also protecting state secrets and the identity of informants.

KansasDem

Posted by: KansasDem at September 10, 2006 12:08 PM
Comment #180314

To me it all comes back to that slippery slope thing, and our whole system of checks and balances, if we allow ourselves to trust the people in power to decide in secret who is guilty and who isn’t, without allowing for a full over site of the evidence and the judges and the reasons people are found guilty, I don’t see what is to keep the system in check.

Posted by: jim at September 10, 2006 12:16 PM
Comment #180316

I mean lets keep in mind here that we are talking about an administration the “outed” one of our own secret CIA agents because they didn’t like what her husband said, and now I am expected to trust them to try and convict people in secret, it may happen , but, I will never think it is right.

Posted by: jim at September 10, 2006 12:26 PM
Comment #180318

“Tony how do you know that the judge doesn’t have his own agenda?”

There are panels that provide judicial oversight, and there’s always the appeals process.

Posted by: tony at September 10, 2006 12:28 PM
Comment #180321

“we assure basic human rights for all world citizens.”
Posted by: jim at September 10, 2006 12:04 PM
Huh…since when did this become the responsibility of the U.S. Most of the liberals on this site argue that we are already too involved in others affairs and tell us quite frequently that these types of “assurances” should be left to the U.N. This is just hypocritical.
The legal opinions expressed here are mostly from dime-store legal theorists and in the real world are useless prattering. As some wise person said, “The Constitution of the U.S. does not require us to commit suicide”! (Posted by a Different Jim)

Posted by: Jim at September 10, 2006 12:33 PM
Comment #180322

Dennis,

The whole point of these trials is supposed to be the clear out the prisons. Some cases are going to be weaker than others.
———————

Woody, I agree. My only point is that we have a judicial system that works and we should make full use of it. Chipping away at due process is in my opinion something we should stay away from. I agree, the contempt discussion is weak.

Posted by: Dennis at September 10, 2006 12:34 PM
Comment #180324

Tony
There are panels that provide judicial oversight, and there’s always the appeals process.

I agree and that is what I am saying, if we allow these people to be tried and convicted in secret and all the evidence to remain secret how are these people to appeal, maybe I am not saying it right, I don’t want public trials of sensitive information, I just want to be sure that there are checks and balances, that there is plenty of impartial over site, that no one is locked away for life without making sure that it is justified and not just one mans or a small group of like minded peoples opinion.

Posted by: jim at September 10, 2006 12:39 PM
Comment #180325

“an administration the “outed” one of our own secret CIA agents because they didn’t like what her husband said” Posted by: jim at September 10, 2006 12:26 PM
Jim…Jim…Jim, the “code name” of the so-called secret agent was…..Valerie Plame. You just must stop reading and believing all that pap that is being spoon fed to you by liberal bloggers. Read a newspaper or newsmagazine sometime. This lie was proven false and put to bed many moons ago. Come-on…your still living in some past fairy-tale world. (Different Jim)

Posted by: Jim at September 10, 2006 12:41 PM
Comment #180326

To the other Jim
When we are the ones locking them up then yes we should be the ones to insure that they are given basic human rights.

Posted by: jim at September 10, 2006 12:43 PM
Comment #180328

Jim…Jim…Jim, the “code name” of the so-called secret agent was…..Valerie Plame. You just must stop reading and believing all that pap that is being spoon fed to you by liberal bloggers. Read a newspaper or newsmagazine sometime. This lie was proven false and put to bed many moons ago. Come-on…your still living in some past fairy-tale world. (Different Jim)

So it wasn’t a member of the administration who leaked her name you are right I missed that one.

Posted by: james formerly going by jim at September 10, 2006 12:47 PM
Comment #180330

Novak’s first source, it was later revealed, was Richard Armitage..Deputy Sect. of State 2001-2005

In the end, Fitzgerald’s investigation revealed that the public exposure of Plame’s name involved no criminal act, and no one was charged with leaking Plame’s identity. However, Vice President Dick Cheney’s Chief of Staff, Lewis “Scooter” Libby, was indicted as a result of his testimony before the grand jury. Though he did not leak Plame’s name, he has been charged with perjury and obstruction of justice.

Seems to me that one member of the administration leaked the name and another tried to cover it up.

Posted by: james formerly going by jim at September 10, 2006 12:58 PM
Comment #180334

the blown cover by
armitage stae dep’t dupe
libby cheney’s knife
rove bush’s hatchet

Posted by: albert at September 10, 2006 1:13 PM
Comment #180337

“Jim…Jim…Jim”

The medical community has made great advances at dealing with stuttering.

KansasDem

Posted by: KansasDem at September 10, 2006 1:53 PM
Comment #180339

james formerly going by jim,

Notice any similarity between the “new” Jim and Thomas of yesterday?

Remember what Adrienne said. Trolls don’t contribute anything. At the very best they extol Coulter and Limbaugh BS talking points.

Don’t feed the trolls.

KansasDem

Posted by: KansasDem at September 10, 2006 2:01 PM
Comment #180349

yes kansasdem, I caught that right away, and I am learning, I made my point valid with a little excerpt, from wikopedia, and then left it alone, I try, but I still get goaded sometimes.

Posted by: james formerly going by jim at September 10, 2006 3:03 PM
Comment #180357

—-Woody—- It wood seem that some folks seem
intellectually inconsistent of the past facts,
we have all observed, of treatment, on prisoners
already kept in those secret places. I would
like to suggest one special prison for suspect,
terrorists, an make legal, the use of polygraph, an Sodium Pentathol or Sodium-Amytal, which make extracting many truths possible. presently illegal to use in Court.

Posted by: DAVID at September 10, 2006 4:02 PM
Comment #180358

Woody, you have very accurately defined the problem. But you have not proferred a Constitutionally endorsed solution.

Either, folks may be tried in secret: not be allowed to face their accusers, not receive an accurate accounting of the charges as to time, place, persons present, and method of the crime, and not have access of disclosure from the prosecutors, in which case we need to amend the constitution, OR, the Constitution was right in its belief that it is better to let a guilty person go, than it is to convict and innocent individual, which is what the Constitutional protections for the accused are all about.

There are major exceptions to rights of the indiviudal in a time of declared war, which the Constitution and laws emanating from it acknowledges. Part of the solution is for Congress to declare war when authorizing our troop’s invasion of foreign borders. Part of the solution is try suspects of crimes committed in foreign lands, in those foreign lands. But the minute one attempts to except Constitutional rights for a crime committed in the U.S., one erodes the Constitution and the intent of the founding fathers.

We also need provisions for enemies of the state where persons are not U.S. citizens, but are found in judicial review to pose a threat to the U.S. and its citizens. Such persons are not Constitutionally protected as U.S. citizens are. Depending on the threat they would continue to pose if deported, incarceration and trial must follow if deportation is not an option. Such trials can and should have different rules of disclosure designed to protect the U.S., but, should also have judges sitting on the bench who have the clearance to review ALL materials of the case.

There is no perfect answer, but any answer which undermines the Constitution is not an option, for if we are to remain a nation governed by law, not by the whim of persons of power, then the Constitution’s integrity must be maintained.

Great topic, good article.

Posted by: David R. Remer at September 10, 2006 4:05 PM
Comment #180363

David R. Remer, very well put, I think that you and I are basically trying to express the same ideas, although you express your self a little better. The only thing I would add is that while I see the need for secrecy, we also need to be sure that we use the checks and balances that our constitution calls for, and it seems that once again the current admin. wants to be in complete and total control and not allow anyone to be looking over their shoulder. As I said I can see a need for secrecy in some matters, but, when the executive branch are the only ones who know what is happening I don’t think that is secrecy in national interest I believe that is trying to sidestep our constitution.

Posted by: james formerly going by jim at September 10, 2006 4:39 PM
Comment #180366

Woody,

Frankly it seems to me that the idea of secret evidence turns our legal system on its head, establishing the principle of guilty until proven innocent.

The entire notion that we cannot make all evidence available to the defense is contingent upon the idea that he may BE guilty, but not be found guilty in a court of law. That in itself shows that the evidence must be rather weak against him. At that point, the proper course of action would be to weigh whether or not to charge him at all. If we decide we do have enough evidence to charge him with, we must show him all of it so that he can respond in his own defence. If he is really guilty, then he should not be able to counter the evidence, so whether he sees it or not will not matter as he will be in jail. If he is found NOT guilty, why should we presume he was guilty anyway and is going to take that evidence back to the enemies of this nation? Do we trust our own legal system so little that we believe it is not going to convict terrorists if presented with proper evidence?

Posted by: Jarandhel at September 10, 2006 6:11 PM
Comment #180368

Jarandhel, well said, I brought up that point earlier, if he is guilty then he already knows this so called secret evidence, and if he is innocent we should not have anything to fear from him,… fear seems to be dominating the day, and as that is a terrorists best weapon we need to make it clear that we as a nation, are not going to let fear dominate our lives… Seems to me that someone once said “The only thing we have to fear is fear itself” sound familiar?

Posted by: james formerly going by jim at September 10, 2006 6:44 PM
Comment #180387

My my my, how America is dragged so low. How a constitutional democrat of any stripe could for a moment consider such perversions of centuries long developed jurisprudence defeats me.

There are a number of issues to address here. Firstly, let us remember that the courts that will try these Guantanamo detainees are military courts. Now as we all know, the people conducting these tribunals are not like judges in civil courts, who are completely independent and untouchable. They are serving members of the armed forces, who are subordinate to the cic. Their basic military training is to complete loyalty to the chain of command, and to regard the CIC as almost a godlike figure.

Secondly, many of the Gitmo detainees were people simply rounded up in Afghanistan by the warlords and sold to the US as Taliban/ Al Queda. It was a very lucrative trade.

Another poster, I think David Remer, seemed to suggest that foreigners could receive something less that the full measure of US justice by virtue of their lack of US citizenship. They may lack US citizenship, but they enjoy the same humanity as anyone else. The common law developed by a growing realisation of the fundamental dignity of the human person. This is not something that is restricted to citizenship. Indeed, in a leading Irish family law case years ago, a non citizen litigated a case regaring a child who was a citizen. Incidentally he lost the case, but what was remarkeable about this case was that he was allowed to pursue it, despite implicit references in the Irish Constitution to citizens.

Friends, if we lower our standards of Justice, we lower ourselves and our societies. There is an interesting piece in todays Sunday Times by Andrew Sullivan, who is I believe something of a right wind pundit in the US. He has been a cheerleader for GW from his election, tho’ recently he seems to be cooling towards him. Sullivan suggests that what Bush ( actually he attributes this scheme to Rove) is to attempt to change the groundrules for the trials of Ramzi bin al-Shibh, khaled Sheik Mohammed and abu Zubaydeh, expect the Dems to oppose these changes, and then portray them as oppositing the application of Justice to those behind 9/11. He is quite clear about the reason for this, saying that ” the push for passage in the months before the election in intense. Last Thursday Bill Frist, the Republican Leader in the Senate, even threatened to bypass three resistant, constitutionalist Republican senators (John Mc Cain, John Warner and Lindsey Graham) to get the measure to the Senate floor and force the Democrats to “side with the terrorists”” The reason he offers for this is to distract the American people from their clear disillusionment with the Bush administration. He goes on to say…”it’s also clear Bush’s policy is a PR disaster. The trial of monsters like Khaled Sheik Mohammed could be a great propaganda weapon for the West. But only if the trials are seen to be fair and open and in line with Anglo-American justice. If the trials violate the Geneva conventions, then the PR victory goes to Al Qaeda”

This whole business is not about justice. Its about hoodwinking the American people into giving enough votes to the Reps for them to hold the house in Nov. Don’t allow yourselves to be cynically used by destroying a birthright won over many generations.


Posted by: Paul in Euroland at September 10, 2006 9:17 PM
Comment #180399

David is right about one thing. Non US citizens are not due the same constitutional protections and privileges as citizens. They are to be treated in a humane and fair manner, but that is the extent of it.

Paul, the birthright you speak of was won by men and women willing to shed blood in the defense of their country. As such, the birthright is reserved for CITIZENS. If I were to travel to Euroland, heaven forbid, I spent enough time there in the service, and I were suspected of a crime, is it not true that I can be arrested and held for an indefinite period of time while the investigation is proceeding? I know it is true in England. But, my Constitution says you can’t do that to me. Charge me or let me go within a very short period of time. Whose law prevails?

Posted by: John Back at September 10, 2006 10:16 PM
Comment #180402

John Back, clearly you know little, if anything of common law, from which both of our systems spring. It is not a novelty invented by the US, or attained by the shed blood in defence of country.

In my country, you cannot be held in detention save by order of a court of law. In special circumstances, you may be held for up to one week.
I know that also in the UK, from whence common law sprang, you cannot be held indefinitely. Tony Blairs government has been trying to legalise detention for up to three months before charging in terrorism linked cases. The systems in continental europe are actually different and do not spring from the common law and I an not very familiar with them. Common law is the law of most english speaking countries, and the tenets it developed are the foundation stone of the laws of your country and mine. Common law countries often draw on leading decisions of other common law countries courts in determining issues before them. What is interesting about your country and mine, is that we both have written inflexible constitutions where certain fundamental rights are enunciated. These rights are enforceable by our superior courts even against the legislative branch. It would be extraordinary indeed in US courts offered less rights to non US citizens in cases where their liberty or even life were at stake. The rights that flow to the citizen arise from our common dignity as human persons. Are you really suggesting that US citizens should enjoy a different standard of justice to non citizens? How would that work with US citizens living or travelling abroad?

Posted by: Paul in Euroland at September 10, 2006 10:37 PM
Comment #180407

The idea that even “some” evidence should be allowed to remain secret in any kind of trial flies so far into the face of our supposed “American values” as to be ludicrous. Our forefathers would be mightily apalled at such a notion. If you can’t make the case without using information that only one side has, you simply do not have a good enough case.
Using such a justification would be like saying that whatever Dick Cheney says about Saddam’s connection to Al Queda must make be true, because he has inside information he “simply can’t afford, for security reasons, to let us see. People lie for political reasons, and the right to confront one’s accusers is based on the age-old recognition of this fact.
That this is even a matter of “debate” seems absolutely absurd.

Posted by: nick at September 10, 2006 11:11 PM
Comment #180408

—-John—- Have you ever heard of the Rico Law.
This law allows the Gov. to pick up a suspect
an hold them with out a lawyer, for an indifferent
period of time.

Posted by: DAVID at September 10, 2006 11:13 PM
Comment #180409

David Remer and John Back:

I feel like I keep having to repeat myself on this one:

Hate to break it to people, but the Constitution doesn’t just apply to citizens. It applies to anyone in the US’s jurisdiction, even illegal immigrants.

Check out this FAQ from the National Lawyers Guild.

http://www.nlg.org/resources/kyr/kyr_English2004.pdf

Or this analysis of that FAQ:

http://slate.msn.com/id/1008367/

Another source states that interpretation of such rights varies but at the very least the Supreme Court has ruled that due-process rights apply to non-citizens.

http://cfrterrorism.org/security/liberties_print.html

Here is another source which affirms that decision, and goes on to talk about the way the administration has reacted to that ruling:

http://www.sptimes.com/2004/11/03/Opinion/Ashcroft_vs_Supreme_C.shtml

Posted by: Jarin at June 16, 2005 12:06 PM

Posted by: Jarin at September 10, 2006 11:21 PM
Comment #180428

Folks, c’mon, some of you are arguing that foreigners should have the same claims to live in our country as those born here. Sorry! That is not a valid argument, and our founding fathers were very cognizant of the difference between citizens and non-citizens.

Citizens have rights to live here, work here, own property here, and be protected by the laws governing citizens here. Foreigners DO NOT have those same rights. AND SHOULDN’T. If they did, we would have 1 billion people added to our population in 5 years. It would DESTROY our government, our economy, and our beautiful and bountiful land and seas.

Get a grip! The Declaration of Independence holds that all persons are endowed with certain inalienable rights. But those rights are endowed by the creator or, the human spirit if one is an atheist. They are not granted or extended by U.S. to all the people’s of the world in total disregard of other sovereign nations and governments.

The U.S. Constitution, an entirely separate document designed to create a nation of law for those governed in THIS nation, clearly lays out laws and prescriptions for U.S. citizens and those living under our laws legally, NOT FOR THE PEOPLE’s OF OTHER NATIONS!

There is nothing inherently unconstitutional in respecting certain legal rights to citizens separate and more guarded than those respecting foreign citizens who must pass many tests before becoming U.S. citizens. That means right off the bat, the Constitution discriminates between citizens and non-citizens. For citizens DO NOT have to pass any tests of citizenship to remain in this country. Foriegn citizens DO. Therefore, the Constitution does hold two standards, one for citizens and another for non-citizens. And that is precisely as our founding father’s intended.

It is one thing to hold that all humans should be treated with dignity and respect, and quite another to grant the enemies of our nation the same protections as pickpockets or murderers who are U.S. citizens. For if the Constitution extended the same rights to foreigners and enemies of the U.S., there never would have been a need to sign the Geneva Conventions, would there?

One can profer an idealist notion that all people everywhere should live under only one law applicable to all. But, then, you are talking about global conquest by the nation which will subjugate all other peoples to their system. Is that where you folks really want to go?

Posted by: David R. Remer at September 11, 2006 4:49 AM
Comment #180434

I tried posting this last night, but because of the links it would not go through. It is a reposting of a point that I made in another thread on watchblog.

Hate to break it to people, but the Constitution doesn’t just apply to citizens. It applies to anyone in the US’s jurisdiction, even illegal immigrants.

Check out this FAQ from the National Lawyers Guild.

http://www.nlg.org/resources/kyr/kyr_English2004.pdf

Or this analysis of that FAQ:

http://slate.msn.com/id/1008367/

Another source states that interpretation of such rights varies but at the very least the Supreme Court has ruled that due-process rights apply to non-citizens.

http://cfrterrorism.org/security/liberties_print.html

Here is another source which affirms that decision, and goes on to talk about the way the administration has reacted to that ruling:

http://www.sptimes.com/2004/11/03/Opinion/Ashcroft_vs_Supreme_C.shtml
Posted by: Jarin at June 16, 2005 12:06 PM


Posted by: Jarin at September 11, 2006 6:07 AM
Comment #180435

David, I’ve tried replying to your points by reposting my reply from another thread (“Perpetuity”, in the Democrats and Liberals column, my reply from June 16, 2005 12:06 PM) but the spam filter keeps catching it. Could you or Woody or whoever needs to approve it do so, please? The gist of the reply is basically that many constitutional rights do, in fact, apply to everyone within US jurisdiction, and that the supreme court has explicitly decided that due process law applies to noncitizens. It uses links to four legal sources to make this point.

Posted by: Jarin at September 11, 2006 6:11 AM
Comment #180436

Paul in Euroland,

Please don’t read anything into my post beyond what I said. I actually agree with you on a couple of important points.

1. Civilian courts would be preferable to military courts. The executive branch should not get the last word.

2. A lot of a detainees are probably innocent people who were rounded up for money or were simply unlucky. That’s why I want them to get trials or just be released. Holding them for five years without charge has been a travesty of justice.

3. I don’t think we should lower our standards of justice either. I pointed out the precedent of espionage cases. Julius and Ethel Rosenberg were executed on the basis of secret evidence. (Maybe the death penalty should be ruled out in such cases. Actually, I am against the death penalty on general principle…) Like Pollard, they were natural born US citizens.

To reply to a couple of other people, I don’t trust Bush either. The Bush era is coming to a close, though. We need to look to the future. If there is any way to avoid secret evidence I’m all for it, but it seems like it would be unavoidable in some cases. We need to have check and balances, and hopefully elect leaders we can trust.

Posted by: Woody Mena at September 11, 2006 6:28 AM
Comment #180437

Folks, c’mon, some of you are arguing that foreigners should have the same claims to live in our country as those born here. Sorry! That is not a valid argument, and our founding fathers were very cognizant of the difference between citizens and non-citizens.
osted by: David R. Remer at September 11, 2006 04:49 AM

David, I’m not sure if the above is intended as a reply to my post above. If so, then you have unfortunately misunderstood me. I made no arguements regarding residence in the US or rights thereto. That is clearly a matter for the US to decide. My point was limited to people brought before any form of US judicial tribunal or court. In the present case, many of the defendants did not come voluntarily into the control of US jurisdiction. As I asked before, suppose an American citizen was arrested in my country and we applied different standards of rights to him/her than we would apply to our own citizens. Suppose we decided that it was ok, because this was only an American citizen, for us to detain this person at the total discretion of the executive, without recourse to the courts. Suppose we had a standard for US citizens which did not require access to legal counsel. And such people automatically were detained in solitary confinement in the most gruesome conditions. Of course none of these things would apply to Irish citizens. Think that would be right?

Posted by: Paul in Euroland at September 11, 2006 8:20 AM
Comment #180440

Citizens have rights to live here, work here, own property here, and be protected by the laws governing citizens here. Foreigners DO NOT have those same rights. AND SHOULDN’T.
Posted by: David R. Remer at September 11, 2006 04:49 AM

In fact David, many foreigners in both your country and mine have indeed such rights, conferred by meeting requirements to a right of residence. I mean for example, people who have come to work in our countries legitimately having met the criteria set out for work visas. They have the right to reside, to own property and the right to protection of the law. Of course they have to responsibility, like citizens, to respect the law also. But in each of the respects cited by you, there is no difference in the rights enjoyed, except that a non citizen can be deported for stated reasons of misbehaviour, which I believe right minded people would have no problem with.

Posted by: Paul in Euroland at September 11, 2006 8:30 AM
Comment #180442

Paul,

To say that people on work visas have “rights” to reside in the US, etc., is to stretch the word beyond its usual usage. For one thing, rights aren’t usually understood to have a built-in expiration date. Also, Homeland Security can simply revoke your visa — I don’t think they even have to go to court.

Posted by: Woody Mena at September 11, 2006 9:15 AM
Comment #180443

On the contrary Woody, to take an example from civil law, if I grant you a lease on a property, then that right is yours until the natural determination of the lease, unless you violate one of the essential terms of the lease. However, the lease will determine upon its expiry, unless we agree to extend it, but that is in effect a new lease.

I don’t know about what rights DHS has in your country, but I believe that someone in my country cannot have a visa revoked without the final say so of a court. I know that many asylum seekers who have been refused asylum still have great access to the courts, to the point where it almost seems impossible to expel them.

Posted by: Paul in Euroland at September 11, 2006 9:54 AM
Comment #180447

I’m sadly amused, on this the anniversary of 9/11, the advocation of violating commonly accepted American Principals for the sake of protecting them.

Is it precedented? Probably. Is it right? Of course not.

The bush administration has proclaimed, relentlessly, that we were attacked because of our freedoms… the very freedoms that he has engaged us in a war in Iraq to shove down their throats. If we are to believe the administration, thousands of Americans have died and many more wounded to bring those freedoms to foreigners and now we suggest that because someone is a foreigner we don’t have to honor their freedoms?

Either we believe in those freedoms or not. If we do, then we honor them as stated in the sixth amendment, which (and I’ve checked) makes no differentiation based on nationality of the accused. If not, then let’s say so and quit hypocritally trying to share the goodness.

Some have made the case that secret evidence should be allowed to protect the lives of the evidence givers, which is a straw man. In truth, what they are trying to protect is the chance that someone will give evidence knowing that their identity will be revealed. The slippery slope here is that not only are we protecting the evidence giver from retribution from the accused, we are protecting him from retribution from the government if the evidence given is false. Why are we not prosecuting those who gave us the false evidence of weapons of mass destruction in Iraq? Why are we not prosecuting those who gave us false evidence of connections between Hussein and Al-Qaeda?

If a person consents to give evidence only on the basis of anonimity, it is not to be trusted. Likewise, evidence which ‘corroberates’ such anonymous testimony is not to be trusted.

The prosecution is compelled to weigh in the balance the risk of secrets revealed against obtaining a conviction of the guilty. If conviction does not outweigh revelation, the prosecution cannot and should not proceed.

Posted by: Thom Houts at September 11, 2006 11:15 AM
Comment #180448

Thom,

If we do, then we honor them as stated in the sixth amendment, which (and I’ve checked) makes no differentiation based on nationality of the accused.

I agree on this specific point. I’ve already identified three Americans who were convicted and/or sentenced on the basis of secret evidence.

The slippery slope here is that not only are we protecting the evidence giver from retribution from the accused, we are protecting him from retribution from the government if the evidence given is false.

The government knows the person’s identity. I don’t know what kind of “retribution” you have in mind for the government to carry out, but secrecy wouldn’t be an obstacle. (Actually, if you are suggesting something really nasty, it would help!)

Why are we not prosecuting those who gave us the false evidence of weapons of mass destruction in Iraq? Why are we not prosecuting those who gave us false evidence of connections between Hussein and Al-Qaeda?

Probably this evidence wasn’t in court of law. It’s a complete nonsequitor anyway. The decision to go to war in Iraq was based on bad information and willful self-delusion. No argument there. But that has nothing to do with criminal procedure.


The prosecution is compelled to weigh in the balance the risk of secrets revealed against obtaining a conviction of the guilty. If conviction does not outweigh revelation, the prosecution cannot and should not proceed.

Suspected terrorists are not going to be simply let go. Ain’t gonna happen. We need a way to put them on trial.

Posted by: Woody Mena at September 11, 2006 11:26 AM
Comment #180460

Randy-

ALLEGED mass murderers.

All-

The basic question of legallity, precedent, application of constitutional rights, etc., will be played out in the courts and through congress.

The real question is how dear you hold those principles that drove the creation of the law. If you are willing to turn you back on them at the first glimpse of legal loophole, I question your integrity. The founders of this nation did not write the constitution the way it is arbitrarily, it was what they considered right and just. If these principles of fair treatment under the law are what we are fighiting and dying for, what message does it send if we abandon them? What must we be fighting for then?

Posted by: David S at September 11, 2006 1:26 PM
Comment #180463

Woody said: “The decision to go to war in Iraq was based on bad information and willful self-delusion. No argument there. But that has nothing to do with criminal procedure.”

But, Woody, consider this. Man A thinks Man B hurt his daughter. Man A hires Man C to get a gun, find Man B and kill him. Man C does just that. Then the police discover it wasn’t Man B who hurt Man A’s daughter at all. Man A and Man C would face murder charges under our system.

This is the scenario of the Iraq invasion. The White House killed thousands of Americans and 10’s of thousands of Iraqis for reasons that turned out not to be true. Are you really suggesting there should be one standard for our government to kill without accountability and another for the rest of us citizens?

Posted by: David R. Remer at September 11, 2006 1:39 PM
Comment #180465

Paul said: “conferred by meeting requirements to a right of residence”

You contradict yourself. A citizen doesn’t have to meet legal requirements. Foreign citizens do. That was my point. The Constituiton and laws respect that rights of citizens cannot be revoked, those of foreign citizens can in number of legal ways.

Posted by: David R. Remer at September 11, 2006 1:43 PM
Comment #180467

Jarin, et. al., the simplest and most straight forward defense of the Constitution affording certain rights to U.S. citizens and not to foreign citizens, is the vote. From the outset, the U.S. Constitution established a voting right for certain U.S. citizens, while prohibiting that right to foreign citizens.

Another regarded running for certain offices. The Constitution, and therefore, the founding fathers, clearly established that not all rights granted to U.S. citizens should be granted to foreign citizens. They did so for the protection and preservation of our American system from the potentially harmful influence and intents of some foreign citizens opposed to our nation, its actions, and representations.

Posted by: David R. Remer at September 11, 2006 1:58 PM
Comment #180470

Remer-

A bad analogy in your ABC scenario: Man A and Man C would be guilty of murder regardless of Man B’s guilt or innocence.

Posted by: David S at September 11, 2006 2:04 PM
Comment #180481

Just one point that seems to always get lost in the discussion
It has nothing to do with whether or not you trust the current adminstration — and that is the reason for us to remain a country of laws.
Even IF the current administration were of the highest ethical order and could FULLY be trusted to implement this BS honestly and fairly, the concern comes in for the future — once this dam is breached, what would prevent some future administration from abusing this and jailing their opponents with fabricated (albeit secret) evidence??
It is “only for the terrorists” — says who?
When will it be advanced to “supporters of terrorists” (and of course the accusation is secret because we don’t want to reveal how we get this “valuable” national security information)
and then
those who object to how the supporters of terrorists are treated — because objecting to “proper legal methods” is supporting the terrorists after all — (Hmmmm, starting to sound more and more like the current situation rather than some “fictional future nightmare”!!!)

Posted by: Russ at September 11, 2006 3:25 PM
Comment #180495

Russ-

Good point. Ted Koppel was on Charlie Rose the other night and said something very similar. If you look at the past, whether it was Lincoln suspending Habeas Corpus during the Civil War, or the internment of Japanese-Americans during WWII, these things lasted 4-5 years. Most everyone agress that the War on Terror will last much longer than that, possibly never really ending at all. Are we willing to change the foundation of our legal system forever?

Posted by: David S at September 11, 2006 4:22 PM
Comment #180503

David S, no, actually the analogy fits perfectly, for the invasion of another nation on false pretenses is tantamount to murder. For a homicide or war to be justified, the circumstances and motives for the homicide or war must be justified. Our laws allow for justifiable homicide as in the defense of oneself or one’s family. Most of the circumstances and motvies for invading Iraq have proved to be unjustified.

So, as should be apparent, the analogy is a very good fit.

Posted by: David R. Remer at September 11, 2006 4:49 PM
Comment #180510

David, you are really not reading my posts! I was responding to your previous post about rights of residence, to own property and to work, in this case arising from a grant of a visa. I never suggested that citizens had to meet legal requirement. What I said was that as long as visitors in our countries behave in accordance with their visas, they have certain rights which cannot be capriciously revoked. It is a precious feature of our common law that rights once granted, cannot be capriciously or unreasonably withdrawn.

I genereally find your posts to be clear expressions of reason and logic and I have considerable respect for you. That is why I am surprised at your responses. Clearly, in any country, voting in national elections is reserved to citizens, as is standing for certain public offices. It is clear, or at least it was to me, that we were discussing equality before the law of all accused persons, whether citizens or non citizens. To say that nationals and non nationals are equal before the law is not that same as saying that non nationals have the very same rights as citizens in a democracy. I hope this clarifies.
“They did so for the protection and preservation of our American system from the potentially harmful influence and intents of some foreign citizens opposed to our nation, its actions, and representations.”
Posted by: David R. Remer at September 11, 2006 01:58 PM

This piece David is a complete non sequitur. Every democracy confers certain rights and responsibilities on its citizens. It really has nothing to do with harmful influences and intents of foreigners opposed to our nations. It is simply part of the compact of rights and responsibilities between states and their citizens.

Posted by: Paul in Euroland at September 11, 2006 5:21 PM
Comment #180512

Remer-

If someone beats up your daughter, and you or your representative kill them, you are guilty of murder. You might get a reduced sentencing recomendation from the DA for circumstances, but no guarantees.

Governments are allowed to respond with violence in instances where private citizens are not. I’m not saying this is right, but it is the way it is.

Posted by: David S at September 11, 2006 5:33 PM
Comment #180567

David S., governments are allowed to respond with violence in any way the people allow them to - in democracies anyway.

The American people can insure that our government never again invades another nation on false information and propaganda. That is the point! The government has no inherent right to establish one set of laws for itself and another set for its people. Our founding fathers attempted to establish one law of the land applicable to all Americans, those in government as well as outside it. One law for all.

When government punishes its citizens for the same acts it excuses itself for, you no longer have a democracy. You have tyranny in the making.

Posted by: David R. Remer at September 11, 2006 8:39 PM
Comment #180790

“We also need provisions for enemies of the state where persons are not U.S. citizens, but are found in judicial review to pose a threat to the U.S. and its citizens. Such persons are not Constitutionally protected as U.S. citizens are.”

I question this assertion. The Bill of Rights of the U.S. Constitution never mentions the word “citizen” anywhere. It mentions a laundry list of rights which Congress may make no law to infringe upon, but does not specify that these rights belong only to U.S. citizens. While it is true that the U.S. Supreme Court has at times in the past re-written the Bill of Rights in specific cases to state that it does not apply to non-US citizens, in general this is an area that is, at best, murky. The Court has also found at certain times in the past in certain cases that if someone is upon U.S. or U .S.-controlled soil, that said person *is* covered by the Bill of Rights, regardless of country of origin. See, e.g., Hamdan v. Rumsfeld, decided this very year by the U.S. Supreme Court.

At best, the only support for the statement that “non-US citizens do not have Constitutionally protected rights” is the fact that the case law is mixed. However, the current Supreme Court, which is comprised primarily of strict constructivists, are more likely to interpret the Bill of Rights literally, the way it is written — as a list of activities which the U.S. government is not allowed to engage in, rather than a list of human rights that only U.S. citizens possess. While there are other equivalents to the Bill of Rights which *do* proclaim to be a list of human rights that citizens of their nations possess — e.g., the Canadian Charter of Rights and Freedoms, or the E.U.’s Charter of Fundamental Rights — the Bill of Rights makes no such proclamation, merely proscribing certain government actions that would infringe upon human rights.

So at worst, the statement that “non-US citizens do not have constitutionally protected rights” is a lie used to justify abuses of non-US citizens that would never be allowed in the case of US citizens — abuses which give the rest of the world the impression that Americans believe that they are the only humans on this planet and that all others are untermenschen, unseemly mud people, to be hated and despised and spat upon. In short, this statement is inherently bigotted, in that it states that some people have human rights and other people do not based solely upon national origin. The fact that the Supreme Court in the past has backed up such bigotry is no surprise — Plessey v. Ferguson, remember? Dred Scott v Sandford, remember? But it is not at all clear that the current Supreme Court is in any way inclined to ignore the actual text of the Bill of Rights in such a way.

-BT

Posted by: BadTux at September 12, 2006 1:10 PM
Comment #180830

BadTux, sometimes folks miss the forest for the trees. You are looking for the word citizen in the Constitution and missing the forest which is that the Constitution is that of the UNITED STATES, NOT Great Britain, Yemen, China or any other nation, and hence has no applicability to those nations or their citizens. Ergo, the rights and entitlements in the Constitution do not apply to enemies of our state who are NOT U.S. citizens, unless, a specific law or provision specifies so.

Sometimes one just has to think like a regular person and not a lawyer to catch the obvious.

Posted by: David R. Remer at September 12, 2006 3:22 PM
Comment #180882

David, the Constitution is a document which defines a government. It lays out the organization, powers and limitations of said government. It does not define the “United States” as such. The United States existed for over a decade prior to the creation of the Constitution, starting in 1776 with the Declaration of Independence. It doesn’t even define citizenship of the United States, and indeed the original document mentions the subject only in reference to the qualifications of office-holders (and indirectly when it implies that slaves are 3/5ths of a citizen). Rather, it defines the government that will govern over said nation and said citizens — its powers, and its limitations.

I realize that the fundamental nature of the Constitution is not a question which people are encouraged to think about, since it is now fashionable to uphold the document as some sort of religious totem in a cult of Americana. However, without understanding the fundamental nature of the document, one is rather at a loss to comprehend the fact that the Bill of Rights was in no way intended to convey or enumerate the rights of U.S. citizens. Rather, it was intended as a list of limitations upon the powers of the U.S. government, since the powers and limitations of the U.S. government were, at that point in time, all that the Constitution concerned itself with.

In the years since, the Constitution has been expanded beyond that original concern, both via amendment and via legislative, executive, and judicial activism (the so-called “unwritten constitution” that has no official existence, but is embodied by traditions and practices that nobody ever questions). However, the current Supreme Court appears to be more interested in the original intent of the founders, and said original intent is quite clear, both from the document they wrote, and from their own writings elsewhere.

-BT

Posted by: BadTux at September 12, 2006 6:56 PM
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