Do accused terrorists have the right to a fair trial?

[Sporanox]

They are in opur custody. They are either criminal suspects or they are prisoners of war. If POWs they are not even subject to criminal trial.

If criminal suspects, it is essential that we PROVE that they committed a crime.

Our laws are so designed that , when all works right, there must be proof of a crime. Unless you know what has been said against you, you cannoot defend yourself. A real criminal can pin the blame for a crime on you, and you would not know it without knowing who accused you.

Get a clue. The accused have rights because it keeps the wrong people from going to jail while the guilty walk.

We are at war, lefty. Some of these rights seem to conflict with the ability to win that war most efficiently.

 

[Grizzly Bear]

I'm a little bit baffled as to why a civilian court case is being held on the suspect if he's still going to be kept in military custody. IMO a military tribunal would more than suffice but it's pointless if he's to be kept incarcerated after dealing with a civilian trial. Not to mention it add fuel to whatever propaganda he wants to use in the process.

 

[WildCat]

Yes, but the government has claimed that these particuar prisoners are not POWs, and don't have rights under Geneva.

You're confusing the extra rights granted to POWs to the basic rights granted to all captured combatants. IOW POWs are a subset of captured combatants. I don't think it was ever the position that they don't have any rights.

So why would anyone who supported such a position claim that Geneva grants the USA the right to try them by military tribunal? (Perhaps there is some other, valid claim that military tribunals are proper here, but I can't see how Geneva for this, but not for that, makes sense.)

The GC makes clear that war crimes can be tried in military courts.

 

[hgc]

You're confusing the extra rights granted to POWs to the basic rights granted to all captured combatants. IOW POWs are a subset of captured combatants. I don't think it was ever the position that they don't have any rights.


The GC makes clear that war crimes can be tried in military courts.

What rights do they have? Name one.

OK. I'll admit that they apparently have the right to life-sustaining food and water. And probably some level of medical care. But name another.

Oh, and just so we're using the same definitions, I think of "rights" as the proof is in the pudding. If they are being exercised, then they're rights. Theoretical rights are useless.

 

[Eyeron]

What are theoretical rights? Can you give some examples?

 

[hgc]

What are theoretical rights? Can you give some examples?

What I mean is rights that are written down somewhere, or otherwise assumed to be granted to you, but which in reality you don't get to exercise. For instance, the Constitution grants rights against unreasonable searches and seizures. In any case where the government executes unreasonable searches and seizures, then the people it's doing it to don't have those rights. In that case for those people, they are theoretical rights. They sometimes get reaffirmed, after failing, such as when a court will exclude evidence at a trial that was obtained thusly.

 

[I Ratant]

What rights do they have? Name one.

...

.
Innocent until found guilty.
The only one they need (desperately)!
Out of that requirement comes adequate food and shelter, medical treatment and no, that is no... TORTURE!
Any American should demand that basic right for anyone!
And a speedy trial in front of accusers and witnesses.
Stuff that's in our Constitution.
We do it that way because we are Americans.

 

[hgc]

.
Innocent until found guilty.
The only one they need (desperately)!
Out of that requirement comes adequate food and shelter, medical treatment and no, that is no... TORTURE!
Any American should demand that basic right for anyone!
And a speedy trial in front of accusers and witnesses.
Stuff that's in our Constitution.
We do it that way because we are Americans.

... in theory. Would that it were real. This is the Bush/Cheney legacy, writ large across American history.

 

[JoeTheJuggler]

The MCA was amended in '09 in response to this case and others. Hence, why the current administration is trying some detainees in the tribunals.

Yes, but again the issue is whether a non-citizen is entitled to the elements of a fair trial that Parky mentioned. You claimed that only citizens are entitled to these things. The Boumediene case said that non-citizens too are entitled to the rights of the accused. The changes in the MCA, as you say, reflect that. The fact that they are non-citizens does NOT mean that you can ignore the rights of the accused as guaranteed in the Bill of Rights. As I have said, when the Constitution meant something to be about citizens, it uses that word. When it means everyone, it uses other words (such as persons).

That goes back to the definition of the term "unlawful enemy combatant."

But the status of prisoner of war has nothing to do with the rights of the accused. A prisoner of war is not a criminal (or at least not necessarily so--that is, being a enemy soldier is not a crime).

 

[JoeTheJuggler]

What I mean is rights that are written down somewhere, or otherwise assumed to be granted to you, but which in reality you don't get to exercise. For instance, the Constitution grants rights against unreasonable searches and seizures. In any case where the government executes unreasonable searches and seizures, then the people it's doing it to don't have those rights. In that case for those people, they are theoretical rights. They sometimes get reaffirmed, after failing, such as when a court will exclude evidence at a trial that was obtained thusly.

This sounds like you disagree with various interpretations of the facts in given cases and not the law. What is "unreasonable" is the kind of judgments courts are asked to make. I agree with you that they aren't infallible. We have a lot of options for appealing and reviewing these decisions, but sometimes a bad decision is made.

I wouldn't say that means 4th Amendment rights are merely theoretical. Similarly, I wouldn't say the crime of murder is theoretical because some actual murderers are never convicted and some innocent people are convicted.

 

[hgc]

This sounds like you disagree with various interpretations of the facts in given cases and not the law. What is "unreasonable" is the kind of judgments courts are asked to make. I agree with you that they aren't infallible. We have a lot of options for appealing and reviewing these decisions, but sometimes a bad decision is made.

I wouldn't say that means 4th Amendment rights are merely theoretical. Similarly, I wouldn't say the crime of murder is theoretical because some actual murderers are never convicted and some innocent people are convicted.

I have been misunderstood. Those rights are not merely theortical if we're actively exercising them. In that case they are both theoretical and actual.

I would argue that there are numerous cases where those rights are violated, up to and and including conviction and execution of sentence, along with unsuccessful appeals on those grounds. But that is a matter of considerable subjectivity. In any case, when it occurs, I would call those examples of merely theoretical rights for the people it happened to.

 

[JoeTheJuggler]

.
Innocent until found guilty.
The only one they need (desperately)!
Out of that requirement comes adequate food and shelter, medical treatment and no, that is no... TORTURE!
Any American should demand that basic right for anyone!
And a speedy trial in front of accusers and witnesses.
Stuff that's in our Constitution.
We do it that way because we are Americans.

I agree with pretty much all of this except the last line. While these ideas were relatively new when our founding fathers were setting things up, they're certainly not unique to us these days*. Pretty much all of the civilized world abides by these practices (obviously that's nearly a tautology since this is largely what defines who is "civilized"). As I mentioned, the protections for the accused in the International Criminal Court are at least as good as what we have in the U.S.--and the U.S. is still not a signatory.

At any rate, being American is no guarantee of a dedication to these principles. There are plenty of Americans, for example, who would commit torture and try to hide it or justify it or spin it as something other than what it is.

*As an aside, it seems like every time we have a presidential election, someone remarks on how wonderful it is that we can have a peaceful and orderly change of government, as if that's a rare thing in the world. I really think we should be at the point where that sort of thing is the expectation and nothing to crow about.

 

[JoeTheJuggler]

I have been misunderstood. Those rights are not merely theortical if we're actively exercising them. In that case they are both theoretical and actual.

I would argue that there are numerous cases where those rights are violated, up to and and including conviction and execution of sentence, along with unsuccessful appeals on those grounds. But that is a matter of considerable subjectivity. In any case, when it occurs, I would call those examples of merely theoretical rights for the people it happened to.

I guess this is more of a philosophical disagreement than anything.

These rights are definitely actual even when we don't exercise them. I still really have the right to peaceful assembly, even if I never leave my own house. And a person who never votes still actually has the right to vote.

I also think the rights are actual, even when they're being violated.

I think when that happens, it's simply a miscarriage of justice. (And the judicial system already does address de jure vs. de facto injustice, but that doesn't seem to be what you're talking about.)

 

[Thunder]

how about this: people accused of terrorism or war crimes that took place on American soil, get a civilian trial. people accused of terrorism or war crimes outside of American territory, get a military tribunal. sound good?

but they ALL get the right to a lawyer, to present evidence and witnesses, to see evidence against them, and the right to appeal a guilty verdict.

 

[hgc]

I guess this is more of a philosophical disagreement than anything.

These rights are definitely actual even when we don't exercise them. I still really have the right to peaceful assembly, even if I never leave my own house. And a person who never votes still actually has the right to vote.

I also think the rights are actual, even when they're being violated.

I think when that happens, it's simply a miscarriage of justice. (And the judicial system already does address de jure vs. de facto injustice, but that doesn't seem to be what you're talking about.)

And I would say that in the case where you don't actually attempt to peaceably assemble, you maybe, hopefully have that right. Only when you try it will you know for sure. You may even have a very high probability of it, based on precedent, but only when you do it is it actual(ized). When that right is violated, like when the local thugocracy cracks you over the skull and locks you up when you're peaceably assembling, well then, you apparently didn't have the right afterall.

 

[hgc]

how about this: people accused of terrorism or war crimes that took place on American soil, get a civilian trial. people accused of terrorism or war crimes outside of American territory, get a military tribunal. sound good?

but they ALL get the right to a lawyer, to present evidence and witnesses, to see evidence against them, and the right to appeal a guilty verdict.

It's not a crazy idea. The principle problem is that it has proven unpractical, so far. There is a well established set of infrastructures, procedures and precedents in place that make the civilian criminal justice system work efficiently and fairly (a good amount of the time). But the military commissions are new and haven't seemed to successfully gotten many damn trials going. This is why Obama/Holder put KSM into the regular criminal justice system. They will actually be able to prosecute his case instead of years more of trying to figure out how it's supposed to work in the military commissions system.

Frankly, I don't see the reason not to use the regular courts and prisons. We manage to convict a huge load of people every year, and are really good at holding them in prison. That the USA has such an outrageously large prison population is testament to the disaster of the drug war, but it also happens to show that we sure know how to lock people up using the court system already in place.

eta: to change the meaning of the first sentence to what it was intended to be.

 

[JoeTheJuggler]

And I would say that in the case where you don't actually attempt to peaceably assemble, you maybe, hopefully have that right. Only when you try it will you know for sure. You may even have a very high probability of it, based on precedent, but only when you do it is it actual(ized). When that right is violated, like when the local thugocracy cracks you over the skull and locks you up when you're peaceably assembling, well then, you apparently didn't have the right afterall.

Again, I think our disagreement is strictly a linguistic one.

I would argue that I do have the right because it's guaranteed in the Constitution, whether I exercise it or not. If some thug denies it, then he is violating the law. If the court sides with the thug, then there has been a miscarriage of justice. (Or, I could be wrong in my analysis of the facts--for example, what I thought was an unreasonable search wasn't really unreasonable.)

However, in real terms, I think you're right in that we should assert our rights in order to make sure the promises of the Constitution are kept. Personally, I think some of these rights (like the right to dissent--free political speech) should be considered more like a civic duty than a right. In my high school civics class, again, we were taught that it is our civic duty to vote. ("Duty" here is meant in an abstract way and not meant in the legal sense, where you can be guilty of doing wrong by failing to do something you have a legal duty to do.)

 

[daenku32]

I guess this is more of a philosophical disagreement than anything.

These rights are definitely actual even when we don't exercise them. I still really have the right to peaceful assembly, even if I never leave my own house. And a person who never votes still actually has the right to vote.

I also think the rights are actual, even when they're being violated.

I think when that happens, it's simply a miscarriage of justice. (And the judicial system already does address de jure vs. de facto injustice, but that doesn't seem to be what you're talking about.)

I consider a right to be "theoretical" if there is no ability to actually enforce it. North Korea could be an example. In theory, North Koreans have the right to free speech, simply because they are human beings. But in reality...no.

 

[hgc]

Again, I think our disagreement is strictly a linguistic one.

I would argue that I do have the right because it's guaranteed in the Constitution, whether I exercise it or not. If some thug denies it, then he is violating the law. If the court sides with the thug, then there has been a miscarriage of justice. (Or, I could be wrong in my analysis of the facts--for example, what I thought was an unreasonable search wasn't really unreasonable.)

I was about to call it linguistic difference before, and indeed it is. But it's more than that too. Sometimes the words we use to describe reality have an ultimate effect on reality. I force the issue by explicitly referring to rights that are untested or violated as rights that we do not have, because I think that to do otherwise can lead to complacency about fighting for rights.

As a matter of fact, even if I successfully exercise my rights while other people are having theirs violated, I might consider my rights to be severely threatened. It could be me next time.

 

[Caustic Logic]

Do accused terrorists have the right to a fair trial?

Hell no it endangers America. Remember 9/11? Yeah. Um, ... See Parky if you weren't such an America-hating radical, you'd know to ignore the first part of "accused terrorist" and emphasize the second. Once that word has entered, you CANNOT take chances. Hey, 9/11.

[/sarcasm]

My new favorite site anyway seems to take this line. Need we worry hthat liberal activist judges will rain mushroom clouds over Manhattan? Just consider another case covered at that site: the release of al Megrahi after his own "fair trial" (see comments, last two)

Another gem from there:
http://creepingsharia.wordpress.com...-sued-for-discriminating-against-non-muslims/