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View Diary: Mixed Decision on Detainee Prosecutions (177 comments)

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  •  I think you misunderstand the problem. (3+ / 0-)
    Recommended by:
    GN1927, pwr2thepeople, hamaca

    The "evidentiary issues" are not whether there is sufficiently-strong evidence to conclude beyond a reasonable doubt whether the defendants are guilty.  The issue is that such evidence exists, but it would be thrown out of civilian courts because of how it was gathered under the Bush administration, when military and civilian investigators were allowed to use all sort of blatantly illegal techniques.  These techniques weren't just used against innocent people, but also against people who were guilty as hell of terrorist homicides.  Writing as if these are innocent guys who are being railroaded when there isn't evidence to prove them guilty is misleading.

    What to do with such people is a tough question.  Following the rules of evidence that apply in civilian courts - such as the "fruit of the poison tree" doctrine - is basically a decision to release people who we know are guilty, we know are terrorists, and we know will perform more acts of terrorism if given the chance.  Don't pretend this problem doesn't exist, and that the people against whom tainted evidence has been gathered are innocent; that's just a dishonest dodge.  If you want to argue that releasing such people, and accepting the risk of doing so, is what we have to do for various reasons, then go ahead and argue that.  There's a very strong case that that is precisely what we should do.  However, it's a case to be made, that one set of considerations outweighs another set, not something that "all decent people" already know, so there's no need to think about it.

    Among the many, many reasons it's great that Obama has banned these illegal practices is the elimination of this problem.  Anyone captured and interrogated under the law-abiding, constitution-respecting standards now in place should be able to be tried in civilian courts just like the first WTC bomber, just like Tim McVeigh, and just like any other terrorist who was captured before Bush's term.

    But for now, with these Bush-era defendants, we're stuck between a rock and a hard place.  We're faced with wither releasing guilty, dangerous people, or with trying them in a manner that offends our norms.  Neither of these options is terribly appealing, and both have huge problems associated with them.  You shouldn't write about this issue as if there aren't actually hard choices to make, and as if the rightness of one or the other choices is obvious.

    Art is the handmaid of human good.

    by joe from Lowell on Fri Nov 13, 2009 at 11:25:04 AM PST

    •  This isn't a matter of warrantless searches. (2+ / 0-)
      Recommended by:
      NearlyNormal, joe from Lowell

      Or chain of evidence rules.

      In at least some of these cases, the "evidence" was obtained by torture. That's not just tainted, it's completely untrustworthy. Not to mention a complete violation of human rights and US and international law.

      The Empire never ended.

      by thejeff on Fri Nov 13, 2009 at 11:32:07 AM PST

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      •  I agree that a confession obtained by torture... (0+ / 0-)

        isn't, itself, reliable.

        On the other hand, let's say a waterboarded suspect provides information - he says "You can find the list of the other people in my group on my laptop."

        The investigators get a warrant, go to his laptop and find the file with a list of names.  They arrest those people, and in the process, find all sorts of weapons and explosives and evidence of additional crimes in the apartments where they arrest them.

        Under the federal rules of evidence, that list of names, and all of the evidence found in the searches of his accomplices would be thrown out of court under the doctrine "the fruit of the poison tree is poison."

        The question of whether statements made under torture amount to credible evidence is easy; of course they don't.  However, that's not really the difficult question raised here.

        Art is the handmaid of human good.

        by joe from Lowell on Fri Nov 13, 2009 at 11:38:25 AM PST

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        •  That's not the difficult question? (0+ / 0-)

          Unlike KSM, who has confessed--al-Nashiri maintains his innocence and has said confessions he gave previously were the result of torture, which means his treatment will likely be a big part of his trial. This may explain the choice of venue.

          Romero brought up several key problems with military commissions: the commissions allow for evidence obtained through hearsay; the commissions allow for coerced evidence--evidence obtained through torture;

          Well, I suppose you're right. They're not difficult questions. It's just that they don't like the answers.

          The Empire never ended.

          by thejeff on Fri Nov 13, 2009 at 11:48:10 AM PST

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          •  You're assuming a lot that you don't know. (0+ / 0-)

            For one thing, you're assuming that the case against him will consist of his torture-induced confessions, rather than evidence gathered in other manners, or evidence that the investigators knew to look for based on what he said while being abused - the exact circumstance I just described.

            No prosecutor is going to go into court and make a case which is reliant on such spurious evidence as a torture-induced confession.  There's no way an entire jury is going to find such evidence credible.  However, people will say anything under torture - including the truth, including where to find evidence that actually does, reliably demonstrate their guilt.

            Once again, it's wishful thinking to pretend that everyone against whom there is illegally-gathered evidence is guilty.  There is a real problem here, and real decision to be made, and you're just wishing it away.

            Art is the handmaid of human good.

            by joe from Lowell on Fri Nov 13, 2009 at 11:54:37 AM PST

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            •  whoops, typo. (0+ / 0-)

              "Once again, it's wishful thinking to pretend that everyone against whom there is illegally-gathered evidence is innocent."

              Art is the handmaid of human good.

              by joe from Lowell on Fri Nov 13, 2009 at 12:03:36 PM PST

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              •  Assuming nothing (0+ / 0-)

                Though, you need to remember that the version with the typo can also be true.

                No prosecutor is going to go into court and make a case which is reliant on such spurious evidence as a torture-induced confession.  There's no way an entire jury is going to find such evidence credible.

                How sure of that are you? Not in a federal court, but if the tribunals are designed to allow such evidence?

                And then there are the ones they don't even want to try in a tribunal since the evidence isn't even good enough for that.

                There are real decisions to be made. These procedures are a way to avoid making those decisions.

                The Empire never ended.

                by thejeff on Fri Nov 13, 2009 at 12:10:37 PM PST

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                •  I'm pretty darn confident. (0+ / 0-)

                  Not in a federal court, but if the tribunals are designed to allow such evidence?

                  In those tribunals, determinations about guilty and innocence, and the reliability of evidence, are not made Soviet-era apparachiks, but by American military personnel, just like in courts-martial.  We trust such people to be able to make decisions about such matters when it is our own military personnel, and not just rubber-stamp the prosecutors' case.

                  You keep saying...

                  And then there are the ones they don't even want to try in a tribunal since the evidence isn't even good enough for that.

                  The problem is, evidence can be very reliable, and still not pass muster according to the rules of evidence.  For example, the situation in which a coerced statement about additional evidence leads investigators to find that evidence, which demonstrates the defendant's guilt.

                  Under federal rules of evidence, and in some cases, even under the military tribunals' rules of evidence, that reliable, guilty-establishing evidence would be in admissible.  This is because the rules of evidence aren't only there to ensure the reliability of evidence, but also to dissuade the government from performing illegal acts in future investigations - which is as it should be, and is a strong argument for throwing out such evidence even in terrorism cases, come what may.

                  However, there are stronger counter-arguments in this particular situation than there are for the ordinary run of criminal cases.  For one thing, the "illegal acts in their investigations" that the Bush-era military and CIA conducted are already banned, and have already been ended.  There's a strong argument that we don't need this dissuading, because they have already been dissuaded by something even stronger than a lost court case.  (Frankly, I think this argument would be stronger if the administration took some actions that even more powerfully dissuaded such acts in the future, such as prosecuting torture.)  For another, we're talking about a set number of defendants/cases, not establishing a standard to be applied going forward.  The Bushies screwed up a certain number of cases, and Holder and Gates are stuck trying to figure out what is the least-bad option for handling those cases.  Beyond that, for cases begun since Obama took office (or a little before, actually, since the Bushies seem to have killed the "Enhanced Interrogation Techniques" themselves), there's no question that established codes of conduct and rules of evidence should and would be followed, and that whatever is decided about these limited number of cases won't apply to anything after them.

                  Art is the handmaid of human good.

                  by joe from Lowell on Fri Nov 13, 2009 at 12:27:17 PM PST

                  [ Parent ]

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