Posted on 05/12/2012 5:32:12 AM PDT by Kaslin
The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution's guarantee of due process to all persons truly a guarantee?
These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules -- which are prohibited by the Constitution -- that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history.
The trial is being held in Cuba because President Obama caved to political pressure from New York City politicians who did not want the trial at the location where the murders took place. In one of the few rules of criminal procedure laid down in the Constitution itself, the Framers required all trials to be held in the same judicial district where the alleged crime took place. They were familiar with the British practice of trying colonists in London for alleged crimes committed in New York. But today New York politicians and their allies in Congress and the president think they can pick and choose which parts of the Constitution to uphold and which parts they can ignore.
The Constitution guarantees the right to confront evidence and witnesses. The colonists were all too familiar with Star Chamber, a British trial system in which evidence against an accused was summarized by a clerk of the court, rather than presented by witnesses with personal knowledge or revealed in documents for all to see. In trials at Gitmo, the government may summarize evidence for the court, and it may keep documents it plans to use away from the defendants.
The rules for this trial also permit hearsay: basically, anonymous accusations that were also the hallmark of Star Chamber. They permit the Secretary of Defense, who is the boss of both the prosecutors and the judge, to replace the judge if the secretary is displeased by his rulings. This is a procedure that is taken right out of the Communist Party playbook in Stalinist Russia.
Perhaps the most radical departure from American due process and pronounced return to Star Chamber is the congressional authorization for the admission of evidence obtained under torture. There is no question that these defendants were tortured. The CIA has admitted publicly that it waterboarded one of them 183 times and then destroyed the videotapes of the torture so jurors could not see how horrific this procedure is.
Torture is so abhorrent to American values that its use by rogue cops has resulted in what is known as the "shocks the conscience of the court" rule. This principle, which has been in place since colonial times, permits the court to dismiss the charges -- no matter how grave -- when the government's behavior shocks the conscience of the court. And all intentional torture is in that category.
I understand the emotions that are fueling these prosecutions, and I understand the pain and loss suffered by those whose loved ones were murdered on 9/11, and I understand the horrific nature of the crimes for which these defendants have been charged. But in America, we still have the rule of law. And that means that no one is above the law and no one is beneath it. Everyone is subject to the law, and the government may not exclude anyone from its protections. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, and its preservation is the reason we have fought our just wars.
This trial may have dire unforeseen consequences. From the president who opposed all this when he was a senator but now effectuates it, to members of Congress who enacted the Military Commissions Act that authorizes incarceration after acquittal (a procedure even the Soviets did not utilize), to the victims' families who surely would not want this rough justice visited upon their children; all these people now crying for blood could one day see the ruination of due process in America, with this case as precedent.
What constitutes a fair trial is the due process of American justice, which is guaranteed and required by the Constitution itself. If we deviate from the moral values of that system for the people we hate, woe to us for making law retroactively and based on hatred.
Judge you know what constitutes a fair trial, notice and opportunity to be heard. These blokes can’t have that much to say that would negate their guilt and they have had plenty of notice of a trial. Still, they will get their chance to speak their piece and if it influences anybody to find them not guilty, well, that is for the finder of fact to determine.
Why not have a drone fly over and be done with it?
Certainly those assassinated in Pakistan didn’t get any form of a trial at all. So to many our system of justice is a farce.
The one you agree with.
Bleeeech. I like the Judge on most things but we are not talking about ‘criminal’ acts we are talking about acts of war. Prisoners of war do not have rights as such.
It is a wonderful academic exercise to chat about natural rights and due process. These POWs are getting better than most since in times past the trial (if one was held) was usually on the field of battle with execution shortly thereafter.
As to torture....water boarding may or may not be torture. But I will tell you what give me a man like Allen West who protected the lives of his men by invoking ‘scary’ techniques rather than the milk toast wimpy crier against torture.
I don't see how we can force even what we consider ""inalienable rights" on foreigners much less enemy combatants.
A civilian style trial is foolish and unwarranted.
Should have just quietly killed them as they became no longer useful.
We must relearn how to defend ourselves.
With due respect, Judge, none of these subjects are Americans, ratehr they are enemy combatants at best, illegal combatants at worst.
Did we subject any non uniformed nazis captured outrside teh US tro our jurisprudence system or did we try them via military tribunal?
US constitional rights and protections are afforded to those who are criminals, captured and charged with crimes against persons in thUS or via extradition. Never before have we thouoght of affording due process reserved for such situations for illegal combatants. Normally, they are captured, exploitred for intelligence value, then shot on the battle field, per the Laws of Land Warfare.
The precedent you seek is to destroy the separation of citizenship and non-citizenship, and criminal action and illegal warfare.
They must never be thought as the same.
Look at the reports of the antics of the accused in front of the military court-they mock the whole proceeding (do we expect otherwise? No), nor do they submit to its or any jurisdiction, they are extreme in all facets and beyond civility in any form.
When we captured a terrorist bomber on an aircraft over theUS, he qwas tried as a criminal in federal court. Catch them here, try them here, catch them anywhere else, for crimes against our country and our citizens, try them there via military tribuanal as we have done for centuries.
American civil rights for Amrican jurisdiction, Military courts for those perpetrating crimes or captured otherwise on foreign soils. The very arguement you make is validated by this long standing and prudent practice.
Of course, I stand with you in regard to American citizens who may be considered as such, unless they are actually in the practice of bearing arms against our military or government interests overseas; then they are combatants and not activtists or criminals.
That having been said, the judge has some great points here. I knew that the Obama Administration's commitment to genuine due process was phony when the Hildebeast claimed that had one guy who was acquitted on all but one his over 200 counts would not have been released in any event. Huh? If you get past a civilian trial with acquittal, how does the government have a right to hold you?
That's why indefinite detention is appropriate for these scum. But let's skip the theater, shall we?
The justice system is a farce, laws have not been equally applied for a long time. That said, the justice system has nothing to do with war. Thomas Jefferson would probably be fine with killing our enemies, I think the Constitution applies to USA citizens, not the world.
There is no hope for USA people to learn these harsh truths without a domestic war. Plan ahead, stock weapons, and form up right wing death squads, they’ll be needed.
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