Criminal trials for Gitmo terror suspects = Bad Law down the road

[Kurt_and_Hunter]

Bringing Gitmo folks into the system is the right thing to do... or rather, it would be the right thing to do if the courts could be counted on to impartially enforce American standards in the cases.

But they cannot. The courts will trim around the edges as long as their decisions cannot result in release or acquittal.

And god knows I am not arguing for release or aquittal because that would lead to even more disasterous political solutions!


In America as it is supposed to be, when a judge gets a case where the suspects were held without charges for six years so they could be tortured he vacates all charges and wishes the suspects well in their civil suits against the government. (And refers people on the prosecution side to the legal authorities for investigation.)

Obviously that is not going to happen in this case because we are talking about 9/11.

The Bush administration made it all but impossible to try these people, but some how, some way a way will be found to try, convict and execute the suspects. (Who are, IMO, probably extremely bad, dangerous people.)

To reach that goal these cases will generate very bad precedents that will weaken the 5th and 6th amendments going forward.

And those precedents will become enshrined in US law because they will tend to be upheld because, after all, we are talking about 9/11.



The defense will win dozens or hundreds of motions (increasing public contempt for rights) as long as those motions do not jeopardize a pre-ordained desired outcome (increasing contempt for the courts in "egg-head" circles like the ACLU)

As the saying goes: Tough cases make bad law.

The legal grab-ass of Gitmo and Extradition and Military Tribunals will infect our domestic legal system even more than it has already.

[ZombieHorde]

1. I am afraid you may be right. I wish I had a solution. nt

[Kurt_and_Hunter]

2. I would tend toward clearing out the Gitmo cases via whatever methods the Bush admin got

the courts to agree to then correcting the state of the law legislatively so it can never happen in the future.

Easier said than done, but it's probably the best of a range of intolerable choices.

[Kurt_and_Hunter]

3. It would be lovely if the cowardly unrec'ers offered an alternative view

Unfortunately it is unlikely they are motivated by any thinking about the law and simply reflexively un'rec anything critical of any administration action.

Such a mind-set is, of course, completely compatible with just about every bad thing that has ever happened in human history but, hey, it feels so good!

[grantcart]

4. wow predicting bad precedents before indictments were made.

Holder made it pretty clear that they had overwhelming evidence that is not yet public that provides an open and shut case WITHOUT using incrementing statements as a result of illegal interogations.

Among the many presumptions you have made is that they will plead innocent. There is evidence that Mohammed Sheik and the others intend to plead guilty and take credit for 9/11.

[Fire1]

5. +1

[Kurt_and_Hunter]

6. So we are talking about a wired process?

I do not doubt for a second that Holder is confident in convictions. That is what I am arguing.

You are talking about a standard where government misconduct and illegal evidence are somehow separable from "good" evidence.

The Supreme Court started us down that road about a decade ago.

These cases will cement it.

That is exactly the sort of thing I am talking about.

This is a terrible development for the concept of broad dismissal of cases where there is pervasive and intentional government misconduct.

It would be difficult to design a hypothetical with more pervasive government misconduct, yet we are all sure of the outcome.

Cases where the government tortures suspects are supposed to be thrown out of court. If the down-side to your case is that torturing suspects might get some evidence thrown out then what is the disincentive to torture?

If these people are convicted in a real American court we will have "proper" Federal Court convictions of people who were systematically tortured by the US government in connection with investigating the case.

If one doesn't see that as an intolerable precedent then... well, I don't know what.

You know how in TV cops who rough up suspects are reprimanded by their superiors for "endangering the case"? Well, we will soon discover that even constructing camps for the purpose of torturing suspects doesn't do much to endanger the case. Then where are we?

[ProSense]

12. Flawed logic

This is a terrible development for the concept of broad dismissal of cases where there is pervasive and intentional government misconduct.

The case isn't in progress. You can't dismiss a case based on misconduct when it hasn't gone to trial. This isn't a case of someone not being mirandized. You are basically advocating that a suspect be dismissed because a prison guard committed an illegal act. That has no bearing on guilt or innocence of the suspect related to the alleged crime or on a trial that isn't in progress. The guard is guilty, but the suspect can still be tried.

Now, if the case were in progress and the tainted evidence had been introduced, there would be grounds for dismissal.

[grantcart]

13. I am not sure what the hell you are talking about

The seperation of "poison fruit" evidence and good evidence is a rather common occurence in US Courts.


That is why evidence is thrown out and other evidence is allowed in and convictions are made. This is happening everyday in the US. There are thousands of precedent of proceeding with a proesecution that has been tainted by misdeeds of the prosecution.

Sometimes all that is required is a simple instruction, sometimes its a mistrial, but judges handle this type of issue everyday and its not a particularly controversial element in American law.

The issue of these trials has nothing to do with the torture question. The question is simply "Is there enough evidence that was legally obtained to convict the defendents of their crimes".

As long as no evidence from the torture or any other statements from the defendents at all is used then the question is moot.

The fact that the ACLU has embraced this move as a "major victory for due process and the rule of law" is a good indicator that the highly speculative assumptions you make are unfounded.

The question of government misconduct of the prisoners effecting the outcome of the trial is only a question if any evidence is introduced that actually comes from their incarcaration. If all of the evidence comes from other sources then the government misconduct is an issue for investigation, sanction and prosecution but irrelevent in the trial.

The concept of broad dismissal of cases where there is pervasive and intentional government misconduct has only applied and will only apply and should only apply when government misconduct eliminates all of the evidence and the remaining evidence that is unrelated to government misconduct is insufficient to convict.

Government misconduct has never been justification for a free pass on a crime. It simply eliminates the evidence that was the result fruit of the crime.

You are also mixing together two completely different things, government misconduct handling a prisoner and prosecutorial misconduct in trying a case. They are completely different hypotheticals and if the prosecution cooperates with the defense there may be no substantive disagreement or fight about what evidence will be submitted.

Finally there is atleast a 50-50 chance that the defendents will admit to the facts charged and either plead guilty or come up with some affirmative defense that it was justified. This would again make the question of what evidence could be used entirely moot.

[Kurt_and_Hunter]

16. As you wish

My activity on this board has become 99% arguing in defense of things so obvious they border on tautology. You want to complain about all sorts of things having nothing to do with what I said. Have at it.

The ACLU comments are irrelevant. You see a disagreement because you want to. If I worked for the ACLU I would have said exactly the same. Has nothing to do with what I am arguing.

Your view of Gitmo as a "prisoner handling" issue is absurd. The purpose of the facility is investigatory.

Dropping cases for gross government misconduct is a long-standing and valuable tradition. It is not to exculpate the defendants. It is to punish the government, and has a long history as one of the only things that actually changes government conduct.

And you will never find a more shocking bunch of willful government conduct.

Whatever... when I argue specifics people counter with principle. When I argue principle people argue specifics.

After a while one gets the message that it's just cheap argument for the sake of argument.

I said what I said and it is correct. These cases will--in specific practice--deform American law. That is a prediction, and will be borne out.


I don't see how it can even be controversial. If someone wants to argue the alternative would lead to even worse law than that's groovy, but does not contradict the statement that The cases will, if they are tried, lead to bad law.

[denem]

7. I'm certain there will be enough admissable evidence. Hard cases make bad law,

but these will be more "ipso facto" than precedents.

[phleshdef]

8. My hope is we can deal with these detainees the best the law allows, considering the cirucumstances.

...and that we NEVER let the situation happen again.

[vaberella]

10. Apparently our laws are not enough but so many advocated for them to be tried here.

I don't know some expect to be done...seriously.

[vaberella]

9. Okay...based on your post---at this point most people just want Gitmo prisoners free.

Just say it...seriously.


People were pushing for them to be tried in the US, and I agreed. We get thm here and now our justice system is not enough to try them because of this/that/or another?! What do you want to do with them? Where do you want them to go?! Just say you want them to be set free even though there could be enough proof that they are not innocents.

[ProSense]

11. Wrong place. n/t

[Kurt_and_Hunter]

14. re: The ACLU

The ACLU is correct that moving these cases to federal court is a victory for due process and the rule of law.

I agree with that. The move is, in isolation, precisely that.

I also argue that this decision will mutilate American law.

The two are not irreconcilable.

My prediction is that due process and the rule of law will be deformed in these cases.

The ACLU can not, and SHOULD not, make such a prediction because they are not in the prediction business.


Ask me as an isolated, abstract legal question, "Should the mastermind of 9/11 be tried in a proper American court?" The answer is quite obviously YES.

And the cases should then be dropped due to pervasive, institutional government abuse in every aspect of the case. But since that correct outcome is not a possible outcome the right thing will lead to very bad results.

To people who see everything as a binary question there will be some yapping of "The ACLU doesn't agree with you." But they do, or rather I agree with them that such matters belong in a court.

Assuming the court can handle the case. The ALU has no option but to make that assumption... provisionally. I, as an individual who is prognosticating am not required to address the question as an isolated instance legal procedure.

[ProSense]

15. "there will be some yapping of "'The ACLU doesn't agree with you.'" re: Logic

read

[Kurt_and_Hunter]

17. Prosense. If you cannot defend your own position don't drag grantcart into it.

I have seen you dismiss many things Grantcart has posted (that were sensible and correct) as "absurd" and "insane" so you post is a particularly vile instance of situational argument for the sake of argument.

[ProSense]

19. His post was more detailed and well-written, but

I basically the same case

Still, why does it matter who made the case?

[mkultra]

21. so you are smarter than the ACLU?

to quote you


My prediction is that due process and the rule of law will be deformed in these cases.

The ACLU can not, and SHOULD not, make such a prediction because they are not in the prediction business.



So you are in the prediction business? I say the opposite is true, they are in the prediction business and you clearly are not.

[treestar]

18. On what ground do you accuse the court of such corruption, claiming it

will not follow the rule of law?

[quaker bill]

20. It is possible you will be correct

however, an alternate outcome is also possible:

It is likely that a great deal of the potential evidence is legally inadmissable due to government corruption under the Bush admin. However, I do not think Obama would take this decision if there was not sufficient admissable evidence to obtain sure convictions.

The alternate outcome is a long trial with lots of evidence of republican perversion of the system of justice coming forward. The trials will stretch over months and months easily into the summer of 2010, and perhaps well into the fall. They will likely all result in convictions and death sentences, but they will involve detailed, lenghty, and repeated public disclosure of the Bush era malfeasance. Interestingly this will be happening as we ramp up to the 2010 election.

[geek tragedy]

22. It's certainly not impossible to try Khalid Sheikh Mohammed without using anything

learned or discovered after he was captured. His waterboardings have no relevance to his overall guilty, only the admissibility of the evidence against him.

[niceypoo]

23. If they cannot be acquitted why bother trying them?

You assume all of them are guilty