--- Dan Minette <[EMAIL PROTECTED]> wrote: > But, you just said that you preferred military > justice. So is your > position also in opposition to the governments, and > are you willing to take > the risk of a military court setting AQ operatives > free?
> Dan M. Eventually, yes. I'd like to see the government set a time limit (I would accept a quite long one, as long as there is one) on how long we can hold people before they establish the tribunal, and then actually run them. I think the problem with that is that the tribunals will actually draw much more international criticism than simply holding people, so the Administration is (understandably) reluctant to launch them. The problem is that from what we know about Al Qaeda, most (not all, almost certainly) of the people there are incredibly dangerous, in a way that normal criminals simply are not. We normally say (I believe quoting Thomas Jefferson) that it's better to let 10 guilty men go free than keep one innocent man in jail. The problem in this situation is that, given the scale of the threat involved, _that's not true in this situation_. Another way to look at that is, would you let 100 guilty men free before putting one innocent man in jail? 1000? 10,000? At some point you have to put a limit. We have a criminal justice system, after all. It is a numerical certainty that there are some number of innocent men in jail in American prisons right now. The only way to ensure that is not the case is to release every single one of them. Anyone want to do that? No? Then we need to think, not emote. Everyone in Guantanamo Bay is suspected of being the most dangerous type of person imaginable - far more dangerous than a serial killer. Most of them, it is fair to presume, are correctly identified this way (we didn't put every person we captured in Afghanistan there - in fact, there are only a few hundred people there and we captured thousands in Afghanistan and could have captured thousands more had we chosen to, so it's only a small fraction, and the sorting presumably was not random). Some of them are people who had the exceptional bad luck to be in the wrong place at the wrong time. Some (hopefully all, but there's no way to know, and no system is likely to do that perfectly) of those people have already been released. We need the tribunals for two reasons. The first because it seems clear to me that not everyone in Guantanamo had anything to do with Al Qaeda - although the government seems already to have released several people, so it seems likely that those released were the ones who just got vacuumed up in the initial sweep. But we need to filter them out. The second is that it is the only way to have some semblance of due process for the rest of those captured. But we shouldn't kid ourselves about the way the tribunals will work. The judge, jury, and _defense attorney_ will all be US military officers. Most of the evidence used _will not be shown to the defendants_. The witnesses (if any) will be subject to cross-examination if present, but most of them will not be present, and most will not be identified to the defendant. Discussions between the defense attorney and their client will not be confidential (although those discussions will not be admissible in court). There probably won't be any rules of evidence that we recognize from civilian courts. Under those circumstances, we'll basically be relying on the fairness of the judge and jury to ensure a good outcome. Now, these are serving military officers who will have sworn an oath to present fair and impartial justice. That's a very strong thing to rely upon - I'm pretty confident that such a trial would do fairly well. But it won't be a civilian court. The bias in favor of the defendant wouldn't be nearly as high. That would satisfy the confidentiality requirements and still do a very good job of sorting the innocent from the guilty. That seems to me to be what the government has in mind. Eventually. I understand Rumsfeld's statement about holding people permanently, and legally he's actually on pretty clear ground. If the Second World War had gone on indefinitely, that's exactly what would have happened to POWs. And, again, people captured in Afghanistan have _fewer_ rights than POWs. They aren't protected by the Geneva Conventions. They're really not protected by anything except the good graces of the American government. The issue is demobilization. We could release German POWs after the war because Germany was demobilized. They would go back home to their families and live relatively normal lives. Al Qaeda hasn't even been defeated yet, but eventually it will be. Its members, though, are never going to be demobilized. They don't need (heck, they don't have right now) formal structures to continue to be dangerous. This is an entirely new problem. No one, so far as I am aware, has dealt with anything much like this under a democratic framework. The British used the SAS as assassination squads in part because they didn't know how to deal with a problem much less severe (the IRA is not made up of suicide squads, after all). India's record in Sri Lanka with the Tamil Tigers might be a precedent, I guess, but the Indians weren't all that big on prisoners, either, IIRC, and they had the Sri Lankan government to help with the issue. India's record in Khalistan and Kashmir is so horrendous that we definitely don't want to take any lessons from there. Our closest parallel, as I think about it, is probably Israel. Anyone know more about the situation there than I do? I believe that the Israelis do, in fact, hold people indefinitely without trial for pretty much the reasons that I have articulated. Of course, the Israelis also allowed torture under exigent circumstances (defined _very_ loosely) up until last year. I'm not comfortable with that (although read Mark Bowden's article in _The Atlantic_ for a description of the parameters of what we probably do, and should, allow). They have a better record than India, though, and a threat comparable to or worse than ours. So we have one precedent for what a liberal democracy faced with a serious threat has done, and the answer is (I believe), pretty much what we have done, except more. This isn't terribly surprising. I tend to believe that any decent government, faced with the problem that we currently face, would probably end up at about the same place. There aren't any good or easy answers in this situation. All we really know is that our ordinary way of doing things isn't going to work. Think about torture, for example. Should we allow torture? First, how would you define torture, exactly? See that Atlantic article again for some thoughts on the topic. But I would argue that no form of coercion is acceptable in normal civilian criminal prosecutions. I'm actually fairly strict on this in civilian rules - although I am a tentative opponent of the exclusionary rule, I believe that all police interrogations should be videotaped, and the videotape should be shown to the jury in any trial. Given the tactics the police use in normal civilian interrogations, I believe that this would make convictions much more difficult. But. In Germany recently a child kidnapper was threatened with torture by a police lieutenant in order to get him to reveal the location of a kidnapped child. He did reveal it, although the child was dead when they found him. Imagine yourself in the place of that lieutenant. The clock is ticking (I believe the child was a diabetic, something like that). You have this person, who knows where he is. And he won't talk. _What would you do?_ Are these special circumstances? Would you do what that German police officer did? Would you go farther, if the threat didn't work? Would you actually torture him? If you don't, the child dies. If you do, you're a torturer. This isn't a hypothetical, remember, this _really happened_ not that long ago. OK. The Israelis allowed torture under "exigent circumstances". By which they meant a ticking bomb. So, you have a Hamas terrorist in your hands. (This is hypothetical only to the extent that we can't put names and dates to the situation - we know for certain that it does happen). Or, more accurately, you have someone whom you have very good reason to believe is a Hamas terrorist in your hands. You know that, somewhere in Israel, a suicide bomber is going towards, say, a kindergarten playground, and this man knows who and where he is. And he won't answer your questions. What do you do? Do you use torture? That was actually legal in Israel under the circumstances until very recently. Now, what would you do? Having asked, I have a responsibility to answer the question. I'm not sure what my answer is, though, and I think anyone who is sure, without being put in the position of having to make the decision, is either lying or too shallow to be paid attention to. I've spent a lot of time thinking about what I would be willing to do. I think the answer is, I agree with the German lieutenant in his position. I would make the threat, but I don't think I could carry it out if the threat didn't work. One life - even a child's life - just can't justify the use of torture. But the Israeli position is harder. If you condone torture, you damn well better be willing to do it with your own hands. I don't know. Intellectually, I think I have to agree with the Israeli position (as it is now) and not the Israeli position as it used to be. The position as it is now is that, in that situation, torture is clearly illegal. But it probably will be used. It should _be_ illegal - torture is something that no civilized society can countenance. But, the fact that it is illegal doesn't mean that it isn't used. What do Israelis in that position tend to do? Well, from what I can tell, they tend to use torture (mild torture, generally, if there can be said to be any such thing) and accept that they might be prosecuted for it. I think that's correct. If you're willing to use it, you should be willing to go to jail because you chose to use it. The issue must be that important. In either case, though, we've gone well past what's allowed under normal procedures. So we have to acknowledge that there are situations in the world that normal civil procedure just doesn't imagine. We are trapped in one of those situations right now. The rules are going to have to bend. The key is to figure out how to bend them the least, and how to make sure that, outside of these unique situations, the bending doesn't spread. The answer to your question, Dan, is that I pretty much agree with the government's position as I understand it. We need to be able to hold non-citizens for quite a while, just as we would have during the Second World War. The fighting in Iraq and Afghanistan is not even over, so the state of war in the countries where we captured them is still going on. Eventually we will have to use military tribunals to sift through the remaining prisoners. Until then we should use administrative procedures as quickly and thoroughly as possible to release those we are holding now who are no longer a threat (which we appear to be doing). That's what it seems to me the government currently intends to do. Rumsfeld's statement, it appears to me, was mainly meant to buy time to allow this process to sort itself out. ===== Gautam Mukunda [EMAIL PROTECTED] "Freedom is not free" http://www.mukunda.blogspot.com __________________________________ Do you Yahoo!? Protect your identity with Yahoo! 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