So much for Obama's promise of tough civilian trials of terrorists

[TommyGunn]

You may be outraged by all the 'hoopla' attorneys 'throw up', but the rules aren't there at random. They're there to protect the police from accidentally railroading an innocent man who was looking very  suspicious. Maintaining a fair system is far more important than executing every single terrorist.

No, they exist to tactically delay trials, to obfuscate facts, and various other things.  
And no one "protects" the "police" from "accidently railroading an innocent man."  I am all in favor of protecting the rights of the accused, but to say that lawyers don't play games trying to suppress evidence they know was obtained legally, and numerous other shenanigans, is simply being determinedly naive.

[MillCreek]

No, they exist to tactically delay trials, to obfuscate facts, and various other things.  
And no one "protects" the "police" from "accidently railroading an innocent man."  I am all in favor of protecting the rights of the accused, but to say that lawyers don't play games trying to suppress evidence they know was obtained legally, and numerous other shenanigans, is simply being determinedly naive.

It is called the adversarial system, and the prosecution side also plays these games.  A lawyer is ethically bound to represent the best interests of the client consistent with good practice and legal ethics.  If you have a better system that protects the rights of the accused, we are all ears.

[Headless Thompson Gunner]

Well, take a shot at explaining - what about the criminal trial (whose job is to ensure the government doesn't imprison people arbitrarily) isn't appropriate for a foreign terrorist?

Those criminal protections aren't there because the courts and government over the years were interested in a series of gifts to criminals.  They exist because they're proven methods of stopping the government from willy nilly imprisoning people it doesn't like, and leaving them no option to challenge it, even when they've done nothing wrong.

There you go again, confusing terrorists with criminals.

Terrorists are not common criminals.  Confusing the two leads to all sorts of stupidity.

It is called the adversarial system, and the prosecution side also plays these games.  A lawyer is ethically bound to represent the best interests of the client consistent with good practice and legal ethics.  If you have a better system that protects the rights of the accused, we are all ears.

When dealing with foreign warfighters, why is the adversarial criminal justice system even a little bit appropriate?  

Seems to me that matters of war and national security aren't things we should play games with, and that the adversarial system is wholly incompatible.

[MicroBalrog]

No, they exist to tactically delay trials, to obfuscate facts, and various other things.  
And no one "protects" the "police" from "accidently railroading an innocent man."  I am all in favor of protecting the rights of the accused, but to say that lawyers don't play games trying to suppress evidence they know was obtained legally, and numerous other shenanigans, is simply being determinedly naive.

The system does not work based on the idea that the lawyer is a good person. The lawyer may be a very bad person. But the system works.

If we did not have - and every Western nation has, to some extent - an adversarial system, then far many more innocent men would be in prison than you can possibly imagine. This isn't because police are evil people. If  the problem were that evil people are police officers, then we could solve it by firing them and hiring better people to be police officers.

Have you never heard a police officer complain that he knew of a bad guy that he was certain was a crook, but he couldn't get him because he didn't have the proper proof? Sometimes these hunches are right, sometimes they are wrong. If police were allowed to bend the rules to imprison crooks - say, waterboard them until they confess, many innocent people would be imprisoned. This has nothing to do with police being evil.

The government has unlimited resources, uniformed and undercover officers, mobile crime labs, the works. The only thing the defender has is his lawyer.

[TommyGunn]

It is called the adversarial system, and the prosecution side also plays these games.  A lawyer is ethically bound to represent the best interests of the client consistent with good practice and legal ethics.  If you have a better system that protects the rights of the accused, we are all ears.

1.) I know it's called the "adversarial system."
2.) I didn't say I had a better one.
3.) I said if the terrorists in Gitmo were to be tried the Military commission would be the best way to go.

The system does not work based on the idea that the lawyer is a good person. The lawyer may be a very bad person. But the system works.

If we did not have - and every Western nation has, to some extent - an adversarial system, then far many more innocent men would be in prison than you can possibly imagine. This isn't because police are evil people. If  the problem were that evil people are police officers, then we could solve it by firing them and hiring better people to be police officers.

Have you never heard a police officer complain that he knew of a bad guy that he was certain was a crook, but he couldn't get him because he didn't have the proper proof? Sometimes these hunches are right, sometimes they are wrong. If police were allowed to bend the rules to imprison crooks - say, waterboard them until they confess, many innocent people would be imprisoned. This has nothing to do with police being evil.

The government has unlimited resources, uniformed and undercover officers, mobile crime labs, the works. The only thing the defender has is his lawyer.

  And I keep hearing how the police are outgunned by the badguys and the resources are being stretched too thin ...blah blah blah.
 

Did someone get the idea I don't like our judicial system?
Perhaps people think we should use crystal balls.  Or shoot-outs at high noon on main street.
Micro, despite everything, I am not out to change our system.

No, they exist to tactically delay trials, to obfuscate facts, and various other things.

I will grant "obfuscate facts" might sound nefarious, but when you really think about it, it doesn't have to be.  What if a knife was retrieved using illegal methods that had to be removed from evidence.  The "knife" would still be a "fact" but the jury would be prohibited from hearing about it because it would be the "fruit" of an "illegal search."

This thread was supposed to be about "Obama's promise of tough civilian trials of terrorists."

  .... Seems to me that matters of war and national security aren't things we should play games with, and that the adversarial system is wholly incompatible.

[cassandra and sara's daddy]

3.) I said if the terrorists in Gitmo were to be tried the Military commission would be the best way to go.


and a military commission would have to toss the evidence gotten by torture  or betray the oath they swore.

[MicroBalrog]

  What if a knife was retrieved using illegal methods that had to be removed from evidence.  The "knife" would still be a "fact" but the jury would be prohibited from hearing about it because it would be the "fruit" of an "illegal search."

How is this a problem? Does the concept of people planting evidence not exist anymore? Including people planting evidence because a suspect is 'guilty anyway'?

[Headless Thompson Gunner]

How is this a problem? Does the concept of people planting evidence not exist anymore? Including people planting evidence because a suspect is 'guilty anyway'?

If you're talking about average street cops planting evidence in criminal investigations, then you have a point.  There are, and ought to be, very rigorous rules and procedures for obtaining evidence in criminal investigations. 

Do you believe that the same evidentiary rules used in the U.S. for criminal investigations are tenable on contested foreign battlefields?  I don't. 

[cassandra and sara's daddy]

Do you believe that the same evidentiary rules used in the U.S. for criminal investigations are tenable on contested foreign battlefields?  I don't.


why?  we've seen rules bent by our own side to head hunt our own soldiers wrongfully  surely it happens the other way as well and its wrong both directions

[TommyGunn]

3.) I said if the terrorists in Gitmo were to be tried the Military commission would be the best way to go.


and a military commission would have to toss the evidence gotten by torture  or betray the oath they swore.

So?  If they were to be tried in a military commision, that's what would happen.

How is this a problem? Does the concept of people planting evidence not exist anymore? Including people planting evidence because a suspect is 'guilty anyway'?

   I am not in favor of anyone "planting" any kind of evidence, either in civilian court or military (except maybe against some people on this forum   ---JUST KIDDING!!!!)

I am not sure where we're going with this.  Do you people believe that planting evidence happens every time an investigative body pursues a investigation?  How often you you suppose it happens?

98% of the time?
67% of the time?
46% of the time?
 

[MicroBalrog]

All I'm saying is that to avoid that, we need rules that toss illegally-obtained evidence. Even when this evidence would lead to a conviction of a guilty man.

[TommyGunn]

I thought we did already ....

[cassandra and sara's daddy]

I thought we did already ....

we do  and thats what torpedoed this case

[De Selby]

There you go again, confusing terrorists with criminals.

Terrorists are not common criminals.  Confusing the two leads to all sorts of stupidity.
When dealing with foreign warfighters, why is the adversarial criminal justice system even a little bit appropriate?  

Seems to me that matters of war and national security aren't things we should play games with, and that the adversarial system is wholly incompatible.

You keep repeating this assertion that terrorists cannot be treated like criminals, but then fail to explain why.  I'd like to see your reasoning as to how putting them through criminal process to determine if they are in fact terrorists leads to "stupidity".

[makattak]

All I'm saying is that to avoid that, we need rules that toss illegally-obtained evidence. Even when this evidence would lead to a conviction of a guilty man.

Why?

If the evidence is not fake, illegally obtained evidence is still evidence for guilt.

If someone did something illegal to obtain that evidence, why don't we punish the person who committed the crime of obtaining it rather than letting someone off who committed some other crime?

Why is being a victim of a crime a "get out of jail free" card for a criminal?

[De Selby]

Why?

If the evidence is not fake, illegally obtained evidence is still evidence for guilt.

If someone did something illegal to obtain that evidence, why don't we punish the person who committed the crime of obtaining it rather than letting someone off who committed some other crime?

Why is being a victim of a crime a "get out of jail free" card for a criminal?

Because otherwise authorities will determine someone is guilty, and then torture people to prove it, including people who might be innocent.  If you want to protect your own right not to be tortured, that is the price you pay.

If you mean illegally obtained evidence other than in the present case (ie, material obtained in illegal searches), the idea that the exclusionary rule is so vast as to turn smoking guns out of trials is a creation of 1980's Dirty Harry and Charles Bronson movies.  It has no basis in reality.  But even that is sustained by the same principle - if you don't exclude the evidence, authorities will routinely violate rights to make the case.

Maybe some are okay with that, but I believe the constitution says what it means and actually restricts the power of the Government.  YMMV.

[makattak]

Because otherwise authorities will determine someone is guilty, and then torture people to prove it, including people who might be innocent.  If you want to protect your own right not to be tortured, that is the price you pay.

If you mean illegally obtained evidence other than in the present case (ie, material obtained in illegal searches), the idea that the exclusionary rule is so vast as to turn smoking guns out of trials is a creation of 1980's Dirty Harry and Charles Bronson movies.  It has no basis in reality.  But even that is sustained by the same principle - if you don't exclude the evidence, authorities will routinely violate rights to make the case.

Maybe some are okay with that, but I believe the constitution says what it means and actually restricts the power of the Government.  YMMV.

And you didn't answer my question.

Why is the proper response to illegally obtained evidence a "get out of jail free" card rather than putting the person who broke the law and illegally obtained the evidence in jail?

[De Selby]

And you didn't answer my question.

Why is the proper response to illegally obtained evidence a "get out of jail free" card rather than putting the person who broke the law and illegally obtained the evidence in jail?

There were two answers there, which will now be more explicit:

1.  The exclusionary rule is not a get out of jail free card. 

2.  The government almost never prosecutes its own people for acting in the course of their employment, no matter how egregious. (Lon Horiuchi, anyone?).  Criminal sanctions and civil sanctions already exist for this kind of behaviour, and still it sometimes occurs.  The only effective way to stop the government from violating rights to fix its cases is to make the violation fruitless.

And as an aside, there is an issue of fundamental fairness - defendants can't rely on illegal methods of excluding evidence.  If that's the rule, it ought to apply to the government's conduct as well.  Unless you think that the state should have special privileges that we don't, of course.

[longeyes]

Who here believes that Obama and the DOJ ever had any intention of being tough on terrorists???  Hasn't "terrorism" been stricken from the official vocabulary?

[makattak]

2.  The government almost never prosecutes its own people for acting in the course of their employment, no matter how egregious. (Lon Horiuchi, anyone?).  Criminal sanctions and civil sanctions already exist for this kind of behaviour, and still it sometimes occurs.  The only effective way to stop the government from violating rights to fix its cases is to make the violation fruitless.

That's a very good argument. I always like pointing out how something would work in practice rather than in theory.

As such, I must concede the point. Though I may prefer to punish the wrong-doers rather than reward other wrong doers, you are right that is unlikely to succeed in the current environment.

[TommyGunn]

You keep repeating this assertion that terrorists cannot be treated like criminals, but then fail to explain why.  I'd like to see your reasoning as to how putting them through criminal process to determine if they are in fact terrorists leads to "stupidity".

We're at war with them.  Soldiers exist to attack and kill the enemy, not to question them, collect evidence, maintain a chain of custody for the evidence, and present what they have to a D.A.
Put the detainees in court, and then you have to put together a case against them, and if you haven't done the business of putting together a case, it won't be effective, even though the detainee was taken off a battlefield after shooting (at) American troops.
Is this quantum physics, or something?

[TommyGunn]

...The government almost never prosecutes its own people for acting in the course of their employment, no matter how egregious. (Lon Horiuchi, anyone?).  Criminal sanctions and civil sanctions already exist for this kind of behaviour, and still it sometimes occurs.  The only effective way to stop the government from violating rights to fix its cases is to make the violation fruitless.....

The only thing Randy Weaver was convicted of was not showing up in court on a specified date; in fact Gerry Spence, his attorney, used the government's own case in defense and it worked perfectly.
So the violation of the Weaver's rights, the death of his wife and son.... it was all fruitless in the end.... and this prevented the government from commiting the atrocity ....how??

[longeyes]

Yes, well, our current Administration doesn't really believe it's at war with anyone except the American people and their legacy values.  That is the alpha and the omega of the current problem.  Until we get people in power who come out of the right values and perspective things are going to get more and more crazy.

[Headless Thompson Gunner]

We're at war with them.  Soldiers exist to attack and kill the enemy, not to question them, collect evidence, maintain a chain of custody for the evidence, and present what they have to a D.A.
Put the detainees in court, and then you have to put together a case against them, and if you haven't done the business of putting together a case, it won't be effective, even though the detainee was taken off a battlefield after shooting (at) American troops.
Is this quantum physics, or something?

Common sense FTW!



(The fact that anyone needs to explain this is worrisome.)

[kgbsquirrel]

Common sense FTW!

(The fact that anyone needs to explain this is worrisome.)

"... we have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men." - George Orwell


I also take this moment to point out the repeated misuse of the term "terrorist," which seems to be losing it's gravitas in the face of over-reaching application. So, to state the obvious once more, a terrorist is a person or persons, who through attacks directed specifically at a non-combatant (civilian) populace, which are orchestrated in such a manner as to cause the greatest psychological impact, intend to cause a shift in political or ideological policies by inducing a state of general fear, apprehension and/or anxiety in the public body. A person who enters a war zone to attack uniformed soldiers while neglecting to conform to the requirements of a uniform or other recognizable symbol, or who are not nationals of one of the involved belligerents, are not terrorists, nor are they criminals in the civilian sense. They are Unlawful Combatants which holds a specific distinction in international law and the rules of war.

Something else that has been gnawing at me, the decrying of the tribunals because all the evidence "comes from the government." When was the last time an ACLU lawyer, or local police officer offered to escort a patrol from the 10th Mountain in Afghanistan in order to ensure that all evidence that some jackhole was shooting at our soldiers or trying to blow them up was collected and processed properly? Has anyone considered that all evidence "comes from the government" because the Government(tm), in the form of our military, are the blokes actually over there collecting it as it were?

By the by, does anyone have the actual recidivism rates for released gitmo POW's? I recall running across quite a few in 2006 in Afghanistan who after being released, hooked back up with the Taliban and got killed fighting our guys (again) or went on to be suicide bombers.