Bill Clinton: "We will do whatever we can to bring the murderers to justice."

[Karen Kraft]

Um, you know it was the CIA's questionable evidence-gathering techniques that horsed up the trial, right?

The conflict between CIA and Justice is nothing new.

More often than not, these problems arise when, under one President, for example, a certain enhanced interrogation technique is permitted under the executive interpretation of Congress' law, and then used to get information, but the trial does not happen until there has been a change in governance: a new President's attorneys have a different view as to what Congress' law permits and does not permit.

In military trials, evidence is permitted based on what the code permitted at the time the information was obtained.

Under civil / criminal law, the court may disallow information obtained by any means that, at the time of the evidence's submission to the court, is considered to have been obtained through means that are PRESENTLY illegal.

See the difference?

That's why military trials are appropriate for terrorists, and civil/criminal spoof-trials are not.

Thus, Obama/Holder picked a venue where terrorists will not, for the most part, be convicted.

Thus: The Pro-Terrorist Party.

I rest my case.

 

[phrodeau]

The conflict between CIA and Justice is nothing new.

More often than not, these problems arise when, under one President, for example, a certain enhanced interrogation technique is permitted under the executive interpretation of Congress' law, and then used to get information, but the trial does not happen until there has been a change in governance: a new President's attorneys have a different view as to what Congress' law permits and does not permit.

In military trials, evidence is permitted based on what the code permitted at the time the information was obtained.

Under civil / criminal law, the court may disallow information obtained by any means that, at the time of the evidence's submission to the court, is considered to have been obtained through means that are PRESENTLY illegal.

See the difference?

That's why military trials are appropriate for terrorists, and civil/criminal spoof-trials are not.

Thus, Obama/Holder picked a venue where terrorists will not, for the most part, be convicted.

Thus: The Pro-Terrorist Party.

I rest my case.

I'm absolutely positive that you are totally correct.

However, the judge involved in the case disagrees with you.

http://www.guardian.co.uk/world/2010/nov/18/guantanamo-terror-trial-reaction

King blamed Ghailani's acquittal on all but one count on rules of evidence in civilian courts which forced the judge, Lewis Kaplan, to exclude a witness who the US authorities learned about from information obtained during CIA interrogation. Ghailani's lawyers claim he was tortured.

The witness, Hussein Abebe, was to have testified that he sold Ghailani the explosives used to attack the US embassy in Dar es Salaam. The judge ruled the information had been improperly obtained.

"Once the judge excluded the testimony of a witness who would have connected Ghailani to these horrible acts, which would have brought about a conviction, it became very, very difficult to convict him. This is the real danger, the real insanity if you will, of bringing these cases in a civilian court," said King. "If this had been in a military commission, that evidence would have been allowed and I'm confident that Ghailani would have been convicted."

However, Kaplan in his ruling on the witness said that the testimony would also have been excluded by a military judge because of restrictions on the use of evidence obtained through coercion.

 

[Karen Kraft]

I'm absolutely positive that you are totally correct.

However, the judge involved in the case disagrees with you.

http://www.guardian.co.uk/world/2010/nov/18/guantanamo-terror-trial-reaction

There is no disagreement in this: We both agree that Judge Kaplan applied the correct measure of justice, under the rules of law that he swore he would uphold, enforce. I agree 100% with the man: in a criminal trial in the United States, evidence obtained improperly, and evidence obtained through leads improperly obtained, are inadmissible in a jury trial. That is exactly why this case did not belong in Judge Kaplan's courtroom. It belongs at GITMO: one stop shopping, so to speak.

Kaplan does not practice in military courts, and the definitions of what is legal and what is illegal are different.

 

[phrodeau]

I see. So you are convinced that military judges will accept substandard criteria that civilian judges will not.

 

[eyer]

Isn't social justice lovely for prisoners of war?

Military tribunal is the only way to go.

I was hoping by now America would have enough females, homosexuals, youngsters, and folks with minority sounding names in the military that most of us would be comfortable - finally - realizing it's no longer an exclusive mess of old white racist dudes pronouncing their bigoted, unfair judgments on poor, helpless victims of social inequality...who just happen to be captured engaged on the field of fire...

...must just be the military haters still, though.

Plenty - plenty - of them still all around.

 

[firespin]

I see. So you are convinced that military judges will accept substandard criteria that civilian judges will not.

Were you thinking that they used identical criteria for everything?

 

[Colonel Hogan]

There is no disagreement in this: We both agree that Judge Kaplan applied the correct measure of justice, under the rules of law that he swore he would uphold, enforce. I agree 100% with the man: in a criminal trial in the United States, evidence obtained improperly, and evidence obtained through leads improperly obtained, are inadmissible in a jury trial. That is exactly why this case did not belong in Judge Kaplan's courtroom. It belongs at GITMO: one stop shopping, so to speak.

Kaplan does not practice in military courts, and the definitions of what is legal and what is illegal are different.

I see. So you are convinced that military judges will accept substandard criteria that civilian judges will not.

Were you thinking that they used identical criteria for everything?

This by Robert Chesney is the best analysis I've seen on the issue.

Andrew McCarthy argues that military commissions are superior to civilian criminal prosecution in at least three respects, and asserts that the decision to prosecute Ghailani in New York was both unwise and improperly motivated.

I disagree with his analysis — particularly because his argument does not address a significant weakness of the military commission system when applied to this particular case.

First, Andrew suggests that a military commission would not have excluded a witness who would have given testimony regarding Ghailani’s purchase of TNT. He characterizes the grounds for exclusion of that testimony as “civilian due process standards,” implying that this exclusion would not have occurred in a military commission proceeding. But it’s hardly obvious that this is so.

It remains unclear whether detainees prosecuted by commission at Guantanamo may invoke Fifth Amendment due process protections; at a minimum, a decision to admit testimony in a commission prosecution that would have been excluded on constitutional grounds in a civilian proceeding would be subject to years of appellate litigation on that point. And in any event, the military judge might well have reached a comparable conclusion under the commission’s own rules even absent constitutional compulsion. At most we can say there was a prospect for more leeway, but nothing certain.

Second, he argues that Ghailani’s own interrogation statements might have been admissible in a commission proceeding. But again, that is not at all certain. Setting aside the constitutional issues, the commission’s own rules provide that a statement “allegedly produced by coercion” prior to December 30, 2005 can be admitted only if the judge determines that the statement is “reliable and possessing sufficient probative value” and the interests of justice would be served by admitting the statement; if the statement was obtained by coercion after that date, the judge also must find that the interrogation did not involve methods constituting cruel, inhuman, or degrading treatment. Perhaps what Ghailani said might make it through those hoops, but it is at least as likely that it would not.

The third advantage? That a panel of military officers in a commission would be more likely than a civilian jury to convict. Maybe, maybe not. The only real example we have is the commission proceeding against Salim Hamdan, where the military officers on the panel did convict the defendant on a material support count but acquitted him on the more serious conspiracy charge.

Finally, there is a huge drawback with trying Ghailani in a commission rather than in federal court. While there is no doubt whatsoever that it was legitimate to prosecute Ghailani under various criminal conspiracy counts, there is substantial debate as to whether conspiracy can be treated as a war crime prosecutable by military commission.

When the Supreme Court in Hamdan v. Rumsfeld confronted this issue, several justices explicitly rejected military commission prosecution of conspiracy charges, while others reserved decision. It may be that the court ultimately could determine that commissions may prosecute conspiracy charges, but that involves substantial litigation risk that cannot simply be ignored.

http://www.nytimes.com/roomfordebate/2010/11/18/prosecuting-terrorists-in-federal-court/justice-was-not-done#reply-5543

 

[Karen Kraft]

This by Robert Chesney is the best analysis I've seen on the issue.

Fifth Amendment Due Process, eh?

ok...

Hahahahahahahahaha


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

That is ALWAYS the wrong answer.

If Due Process is at issue, it always ends up being analyzed in terms of the Fourteenth Amendment.

Jeeezzz....


Meanwhile, With decisions like this, if Obama wants to try these guys in The Court of Sham-Wow, the people in the field will capture these guys, drain them of all useful information by whatever means they like, and waste them. No paperwork at all or messy ObamaBull to contend with back home. The reality is that this sort of thing causes abuses. Those of us who live in the real world know that.