View Full Version : Gitmo's Courtroom Wrangling Begins
Gitmo's Courtroom Wrangling Begins
By ADAM ZAGORIN/WASHINGTON Mon Apr 28, 12:00 PM ET
This week at the U.S. Naval base at Guantanamo a military court will hear key pre-trial motions in the terrorism case against Salim Ahmed Hamdan, the one-time driver of Osama bin Laden. Among the defense witnesses will be Air Force Col. Morris Davis, who resigned in protest last fall as Gitmo's chief prosecutor. His allegation: that top Pentagon officials - who are legally required to remain neutral - have tried to exert political influence on the conduct and outcomes of a whole series of high-profile trials scheduled for later this year.
As a result, defense lawyers say they will challenge the basic fairness of the proceedings. Indeed, this week, Hamdan's lawyers will allege "unlawful command influence" over their client's prospective trial. Col. Davis, Guantanamo's former chief prosecutor, is expected to testify that Gordon Englund, the Deputy Secretary of Defense and the Pentagon's second-highest civilian, told him last year, "We need to think about charging some high-value detainees because there could be strategic value before the [November] election." Davis is also expected to repeat, as he has in court filings, that the Defense department's former top lawyer, general counsel William Haynes, informed him, "We can't have acquittals [at Guantanamo]. If we've been holding these guys for so long, how can we explain letting them get off?. We've got to have convictions." Davis is also quite likely to accuse Air Force Brig. Gen. Thomas Hartmann, senior legal advisor to the tribunal, of demanding "sexy" cases with "blood on them" to drum up public support for convictions. "There is no question they wanted me to stage show trials that have nothing to do with the centuries old tradition of military justice in America," Col. Davis told TIME. All three Pentagon officials have disputed Davis's version of events. So far, none have done so under oath.
Prosecutors have described legal proceedings at Guantanamo as a contemporary version of Nuremberg, the post World War Two tribunals that decided the fate of the major surviving Nazi war criminals. But for many critics the proceedings promise further bad publicity for the U.S. on a global scale. A dozen suspected al-Qaeda prisoners are in custody in Gitmo, among a prison population that currently numbers 280. The pace of legal motions is expected to increase in coming weeks, as trials loom for six "high-value" prisoners, including Khaled Sheik Mohammed, the self-professed mastermind of the 9/11 attacks. In February, military prosecutors charged the six with murder and conspiracy and called for the death penalty.
In those upcoming trials, the defense may try to use Davis's statements to show that the Pentagon crossed a variety of legal red lines. In Mohammed's case, however, that will include the issue of torture. The CIA held him in a secret prison for years, and has admitted that his interrogation included techniques such as simulated drowning, infamously known as waterboarding. Most experts say that, as a form of mock-execution, there is no doubt that waterboarding constitutes torture. (The technique is banned by the U.S. military.) If defense lawyers can show that confessions obtained from Mohammed or others were obtained by torture, or that their testimony against other prisoners was similarly coerced, then that testimony could be ruled inadmissible.
No specific trial dates for the "high value" prisoners have yet been fixed, but when they are, the proceedings will be televised via closed circuit to the U.S. mainland for the benefit of relatives of those killed in the 9/11 attacks. Victims' families will be able to follow the proceedings from Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts.
The proceedings could well be further complicated by an impending U.S. Supreme Court decision: Boumedienne v Bush. The case deals with the question whether alleged terrorist Lakmar Boumedienne, also held at Guantananmo, possesses legal rights afforded by the U.S. Constitution. If the Supreme Court decides in Boumedienne's favor, other Guantanamo defendants could gain similar rights, invalidating rules currently in force at the military tribunals.
Wrangling over legalities is expected to delay at least some of trials, perhaps into next year, well after President Bush has left office. Such contentiousness is not unusual in high stakes cases, particularly those involving the death penalty, but this time the defendants have even more reason to delay. All three candidates vying for the White House have already called for shutting down Guantanamo. If that were to happen, some or all of the trials might have to be transferred to the U.S. mainland, and possibly even to federal courts where the defendants would enjoy broader legal rights.
http://news.yahoo.com/s/time/20080428/us_time/gitmoscourtroomwranglingbegins
budgie
04-30-2008, 08:14 PM
To be followed closely by a legion of armchair lawyers at mp.net....
Doggonit55
04-30-2008, 08:28 PM
I don't understand. Why is waterboarding considered so vile? Sure, it's torture but it's nothing like what the Israeli intelligence services are capable of, never mind the Chinese, or any other number of organizations I could list. It's about as harmless as you could ask. Again, I don't condone torture of any sort, but why are they acting as if this guy had been electrocuted or mutilated or such?
I don't understand.
You don't need to tell us this. We know you don't understand a great many things.
Try this. Two wrongs don't make right.
Here's another. Obey the law even if your enemy doesn't.
How about this. Torture is wrong and the fact that a lawless enemy practices it does not justify your own use of it.
I would keep going but I imagine your quote just about covers it.
Have a super duper day.
hank
Laworkerbee
04-30-2008, 08:54 PM
I don't understand. Why is waterboarding considered so vile? Sure, it's torture but it's nothing like what the Israeli intelligence services are capable of, never mind the Chinese, or any other number of organizations I could list. It's about as harmless as you could ask. Again, I don't condone torture of any sort, but why are they acting as if this guy had been electrocuted or mutilated or such?
Ever been water boarded before?
http://i87.photobucket.com/albums/k141/laworkerbee/PH2006100500898.jpg
Doggonit55
04-30-2008, 09:25 PM
Ever been water boarded before?
No. Obviously not.
No. Obviously not.
Obviously not enough times. Let's try again.
hank
Doggonit55
04-30-2008, 09:29 PM
You don't need to tell us this. We know you don't understand a great many things.
No need to be rude.
Try this. Two wrongs don't make right.
Never said they did. You are clearly misunderstanding my post.
Here's another. Obey the law even if your enemy doesn't.
I said I don't condone torture of any sort. Did you actually bother to read what I wrote?
How about this. Torture is wrong and the fact that a lawless enemy practices it does not justify your own use of it.
I never said that it was justified, and did not condone it, yet again...
I would keep going but I imagine your quote just about covers it.
What do you precisely mean to say by that? I think you misunderstood what I was puzzling over...
Have a super duper day.
Why are you so condescending? For such an advocate of righteousness you're sure lacking in courtesy...
Doggonit55
04-30-2008, 09:29 PM
Obviously not enough times. Let's try again.
hank
What is your problem? What did I ever do to you?
Think before posting. When you don't i get testy. Do you really need me to give you a legal reason why waterboarding is bad? Ok I will.
Its a baseline legal principle that information gained from coercive techniques involving violence or threats of bolidy injury are not admissible as evidence. Been that way for a long time. And our govt, in its wisdom, wants to disregard that. And it certainly looks like they want to abandon that rule only becasue they are afraid that without the coerced confessions and testimony some of the Gitmo boys will walk. That is scary.
And torture is just wrong. We whine like heck when people toruture our guys. It kind of puts a crimp in our credibility when we then turn around and torture people that we hold in a military base without actually making any charges against for like 5 years. Especially when we fly them to countries that wink wink promise not to ask who we fly in and what we do with them while they are there.
hank
Doggonit55
04-30-2008, 09:40 PM
Think before posting. When you don't i get testy. Do you really need me to give you a legal reason why waterboarding is bad? Ok I will.
I think I understand the misunderstanding now.
What I meant to ask, and in retrospect phrased it poorly, was why is it that all the media outlets and pundits are acting like waterboarding is the most heinous sort of torture ever conceived and get so upset about it that one might think that it was intentionally developed to cause as much harm as possible before resulting in a gruesome and horrible death. I am merely questioning the overhyping of it. That's all. As far as what you've said, I agree completely and on all points. I really and truly have no fight to pick with you.
And torture is just wrong. We whine like heck when people toruture our guys. It kind of puts a crimp in our credibility when we then turn around and torture people that we hold in a military base without actually making any charges against for like 5 years. Especially when we fly them to countries that wink wink promise not to ask who we fly in and what we do with them while they are there.
I agree completely.
Firetxmi
04-30-2008, 09:43 PM
Because the U.S. is supposed to be on the moral high ground. It doesn't matter if the torture leads to death or not, it is torture (even by your admission). Nations with morals don't torture suspects. That is why it is so hyped.
Doggonit55
04-30-2008, 09:51 PM
Because the U.S. is supposed to be on the moral high ground. It doesn't matter if the torture leads to death or not, it is torture (even by your admission). Nations with morals don't torture suspects. That is why it is so hyped.
Sure, but listening to some radio shows here in the UK, and reading the papers, while this whole thing was playing out, it was at times made out to seem like a specially cruel form of torture that was designed to inflict as much pain and suffering as possible. They kept on mentioning severe psychological trauma, etc. etc. But that's the case with just about any and all forms of torture, no? So why are they acting as if this was some supreme, uber-evil sort of torture? That's all I'm questioning. I dislike over-hype, that's all.
vryhpyammoadded
05-01-2008, 04:50 PM
Although there is some truth to certain unsanctioned occurrences and debate on just what legally classifies as torture, the fact is that there are interests in conflict with other interests and that propaganda is very much alive and well on all sides.
There is an ongoing war for the minds of people happening world wide, every day. This is fact not fiction so always remain skeptical with whatever they feed you about anything and if it concerns you enough, study hard, try to filter out the BS and always try to make your own decision.
Calanen
05-02-2008, 08:24 AM
Sure, but listening to some radio shows here in the UK, and reading the papers, while this whole thing was playing out, it was at times made out to seem like a specially cruel form of torture that was designed to inflict as much pain and suffering as possible. They kept on mentioning severe psychological trauma, etc. etc. But that's the case with just about any and all forms of torture, no? So why are they acting as if this was some supreme, uber-evil sort of torture? That's all I'm questioning. I dislike over-hype, that's all.
The average person lasts about 10 seconds with waterboarding.
We shouldnt be doing any torture on anyone, really. I think that was the problem. Not that it was worse than having hot pokers in eye sockets.
Andrew Chalmers
05-02-2008, 01:43 PM
Torture is just plain stupid for any organization/government that wants to obtain a criminal conviction or reliable intelligence.
I guess one can always torture to make the sadist within us feel good (cue "our enemies are worse than us" and therefore do not deserve rights); but no legitimate tribunal or court should admit confessions or incriminating information obtained through torture. I'll even go as far as to say no legitimate common law court should admit testimonial hearsay uttered by a declarant that is available.
I'll even go as far as to say no legitimate common law court should admit testimonial hearsay uttered by a declarant that is available.
This isn't the place for an evidence debate but this statement is is not workable. How could you impeach a witness with his own inconsistent statement if your rule was in place? Previous statements of available declarents are admissible for lots of reasons in lots of situations. And they should be. But that has nothing to do with torture and its effect on the admissibility of statements yielded as a result of turture.
hank
Calanen
05-03-2008, 09:12 AM
I'll even go as far as to say no legitimate common law court should admit testimonial hearsay uttered by a declarant that is available.
Guess that means no common law courts are legitimate.
Andrew Chalmers
05-03-2008, 02:18 PM
This isn't the place for an evidence debate but this statement is is not workable. How could you impeach a witness with his own inconsistent statement if your rule was in place? Previous statements of available declarents are admissible for lots of reasons in lots of situations. And they should be. But that has nothing to do with torture and its effect on the admissibility of statements yielded as a result of turture.
hank
I misspoke - what I meant to say admitting the hearsay without bringing in the declarant who is available into the tribunal. As the MCA rules are currently applied - a third person can make a statement against the accuse, while remaining unanimous and do not have to take an oath, testify before the trier of fact or be subjected to cross-examination.
I misspoke - what I meant to say admitting the hearsay without bringing in the declarant who is available into the tribunal. As the MCA rules are currently applied - a third person can make a statement against the accuse, while remaining unanimous and do not have to take an oath, testify before the trier of fact or be subjected to cross-examination.
I agree that is problematic. The first AF prosecutor has said that the rules were set up to make it basically impossible not to get convictions. The whole thing is a stinking mess from a due process standpoint. I guess it is from an evidence standpoint as well.
hank
This isn't the place for an evidence debate but this statement is is not workable. How could you impeach a witness with his own inconsistent statement if your rule was in place? Previous statements of available declarents are admissible for lots of reasons in lots of situations. And they should be. But that has nothing to do with torture and its effect on the admissibility of statements yielded as a result of turture.
hank
Hank, just because you scream the loudest with your debate on 'inadmissable evidence', (which, btw, you said this wasn't the place for it)doesn't mean we all have to agree with you....Doesn't mean you need to get condescending with folks that disagree with you either.
This is not the squeaky wheel syndrome.....
The debate rages on.....We don't know what 'evidence' these terrorists in Gitmo have given up while they were being (so eloquently put by you) tortured.......Could it be that THOUSANDS/MILLIONS of US lives were saved because of information that neither you nor I know about??
Yes is my answer to that, or no if your cup is half full....
Waterboarding IMO...is not torture, it is a method.....WB can be defeated......hell, the GREAT THING about being in US CAPTIVITY is that you know damn full well you'll LIVE THROUGH any method of interrogation the US has to offer.
Can you really say that about any other country?
Stop screaming so loud, we're not all listening.....at least not those that have BTDT anyway......
Tell me how you want to change my mind and use conversational techniques instead of demanding that I see things your way.......
2cents.....:|
Calanen
05-04-2008, 10:44 PM
Waterboarding IMO...is not torture, it is a method.....WB can be defeated......hell, the GREAT THING about being in US CAPTIVITY is that you know damn full well you'll LIVE THROUGH any method of interrogation the US has to offer
Well..the former Iraqi General Mowhoush didn't. But yes you will have a better chance of doing so.
Stop screaming so loud, we're not all listening.....at least not those that have BTDT anyway......
You are confusing the conduct of trials with the conduct of the war. They are too very different things.
We are big enough, or should be, to offer even terrorists or their sympathisers fair trials. We did during WW2, and the union/free world didnt collapse because we did.
I think in essence your argument is, I've fought for my country - no trial lawyer can tell me we need a fair trial for those we fought against! I respect your service, but, I think there can be room for different opinions.
You say that millions of lives may have been saved by the information that was provided. We dont know what information was provided, because the CIA shreded it apparently. After initially saying, that they didnt keep any records of it. No video. No notes. No microphones. Only the agents memory, who could not be cross-examined on what he or she witnessed.
I dont mind people detained being placed under 'pressure' or interrogated. But we need to give them all a fair trial, or cut them loose, and apply the Geneva Conventions. And quickly. Detaining someone for 6 years without bringing them to trial is a joke. Also, give them a lawyer.
Keeping people detained, at least statically, some of whom must be innocent, indefinitely does us no favours - even from a PR standpoint. It also tells the barbarians we face - that our 'values' are only values of convenience, and that we really stand for nothing at all.
Violet Fashion by Mindy
05-04-2008, 10:55 PM
You supply enough pressure, threats, actual physical violence and or mental trauma and anybody will confess to anything to get it to stop.
The whole Gitmo thing is a farce. End of no ifs no buts. Even David Hick's prosecutor came out recently and said such a thing.
MJC9678
05-04-2008, 11:00 PM
Guys, there is a very simple solution to this problem. Stop taking prisoners out of the battlefield. Most of these guys at GITMO were taken off the battlefields in Afghan. and Iraq. They should not have access to US courts or taxpayer funded legal teams.
We have enough 5th column groups in the US working against us, we don't need to import more "ammunition" for these people to further use the courts against us.
I think I must have missed the part where Hank was "screaming".
I think I must have missed the part where Hank was "screaming".
Hank professed to 'not discuss evidence', and then went ahead and discussed it (out of hand-as we don't know any of the evidence that will be presented, do we?). I took from his post the 'You will like it because I say so' attitude.
Perfectly viable opinion, everyone has one, just don't say 'I'm not going to say anything else' and then twist my arm to change my opinion..
That's what I was saying...possibly not 'screaming'...you would be correct...
My point is that waterboarding was chewed up, regurgitated, spit back out as legal, and continues to this day.
I hope, as well as you, that evidence is presented in a legal manner in Gitmo, the facts prove that these guys did what they did and are in jail, serve their time, court proven....and aren't sent to Yemen to serve their sentence.
The method the information may or may not have been extracted is the question. We're not in the courtroom and prob won't know everything that happened.......
My point was/is everyone lives, lives are saved...
I believe in WB and many do not. I haven't seen anything here that makes me think anything different.
I just ask myself, what if WB'ing extracted time sensitive info, the info was sat on until the 'legal wrangling' takes place, and 50,000 people die in a football stadium while the lawyers hashed it out. BTW, my whole family was at the game.
My question to the board would be, 'What if it were your family? Would WB be OK then but not now?...FFT
Calanen
05-05-2008, 06:48 AM
I just ask myself, what if WB'ing extracted time sensitive info, the info was sat on until the 'legal wrangling' takes place, and 50,000 people die in a football stadium while the lawyers hashed it out. BTW, my whole family was at the game.
I think you have thrown straw man on the pyre and he is well alight.
What if it was you who was picked up on the streets of Iraq or Kabul and sent to Gitmo. But you are not a terrorist you say. But, well, everyone who was picked up..must be. Because, well, we say so. Because we just do. Because lives are at stake, and, when lives are at stake we can do what we want. We dont have any fair means of verifying or checking that we have made the proper allegation against these people.
So your system of justice becomes - anyone who is accused must be guilty. And all those accused must be guilty, therefore we can treat them anyway we want. Waterboarding is ok, and we can admit the evidence gained from waterboarding.
This still goes back to the fundamental flaw in your reasoning..what if, just what if..one or more of these people were innocent. How would they go about proving that with no due process?
Do you see how when there is no proper method of checking whether or not anyone was picked up in fact was or is a terrorist, that we do not know, who or what we have picked up? You make the false assumption, that everyone that is in Gitmo must be guilty. Even statistically, that cannot be right.
I am not talking about the high profiles like Kaled Shaikj Mohammed - but all the no names there. Are any of them POWs? Any of them accused by their neighours out of jealousy, spite, because the Americans would give them a few grand for nabbing an Al Quada?
Its all very well to get carried away waving the stars and stripes and marching to the Star Spangled Banner. But due process means things get done properly. Not in a half assed witch trials of salem type manner.
Speedy trials, represented defendants, records of interview, confrontation of witnesses. Then if they are guilty, hang em or shoot em. But give them all a fair trial within a reasonable time.
As to waterboarding, interrogators could get you to admit you were Al Quada or Osama Bin Ladin to make waterboarding stop. Doesnt make it true.
I think you have thrown straw man on the pyre and he is well alight.
What if it was you who was picked up on the streets of Iraq or Kabul and sent to Gitmo. But you are not a terrorist you say. But, well, everyone who was picked up..must be. Because, well, we say so. Because we just do. Because lives are at stake, and, when lives are at stake we can do what we want. We dont have any fair means of verifying or checking that we have made the proper allegation against these people.
So your system of justice becomes - anyone who is accused must be guilty. And all those accused must be guilty, therefore we can treat them anyway we want. Waterboarding is ok, and we can admit the evidence gained from waterboarding.
This still goes back to the fundamental flaw in your reasoning..what if, just what if..one or more of these people were innocent. How would they go about proving that with no due process?
Do you see how when there is no proper method of checking whether or not anyone was picked up in fact was or is a terrorist, that we do not know, who or what we have picked up? You make the false assumption, that everyone that is in Gitmo must be guilty. Even statistically, that cannot be right.
I am not talking about the high profiles like Kaled Shaikj Mohammed - but all the no names there. Are any of them POWs? Any of them accused by their neighours out of jealousy, spite, because the Americans would give them a few grand for nabbing an Al Quada?
Its all very well to get carried away waving the stars and stripes and marching to the Star Spangled Banner. But due process means things get done properly. Not in a half assed witch trials of salem type manner.
Speedy trials, represented defendants, records of interview, confrontation of witnesses. Then if they are guilty, hang em or shoot em. But give them all a fair trial within a reasonable time.
As to waterboarding, interrogators could get you to admit you were Al Quada or Osama Bin Ladin to make waterboarding stop. Doesnt make it true.
Now that's more like it!! An intelligent retort to back up an opinion!!
Gonna have to think on that one and I appreciate your candor...sincerely..
not to mention a little humor in the response goes a long long way...nooooo...not that your response was humorous....lololol :)
And this...this is good...really good:
Originally quoted by Calanen:
I think you have thrown straw man on the pyre and he is well alight.
wootahhahaaa
eskachig
05-05-2008, 07:12 AM
My point is that waterboarding was chewed up, regurgitated, spit back out as legal, and continues to this day.Actually, no, this is completely incorrect in every respect.
I just ask myself, what if WB'ing extracted time sensitive info, the info was sat on until the 'legal wrangling' takes place, and 50,000 people die in a football stadium while the lawyers hashed it out. BTW, my whole family was at the game. The ticking bomb scenario has never been particularly great way to justify torture.
My question to the board would be, 'What if it were your family? Would WB be OK then but not now?...FFTNobody is expected to behave rationally when family is involved. That doesn't mean we should set policy with that mindset.
eskachig;3223640]Actually, no, this is completely incorrect in every respect.
And with respect to you, that opinion is not shared by all.
http://www.latimes.com/news/nationworld/nation/la-na-torture7feb07,1,3156438.story?track=crosspromo
I guess that would depend on which MSM you choose to listen to/watch...
The ticking bomb scenario has never been particularly great way to justify torture.
I guess the Cold War wouldn't be justified in that example then, eh?
Nobody is expected to behave rationally when family is involved. That doesn't mean we should set policy with that mindset.
Then are you saying 'My family died, so yes, go ahead' or are you saying 'Not OK - ever'? The rationality should come before anything bad happens IMHO.
If not family, the fabric of a free nation, then what do you base policy on, the dead? I'd equate that to a being a bit late in the decision making process. (Family would include all ranges of politics-behavior-decisions-legalities)
razor_baghdad - I think you need to try and read and comprehend. Andrew Chalmers made a blanket statement about hearsay which I said would not work. When he read my post he said that he had misspoken and corrected himself. To which I replied and agreed that the corrected statement he had made was indeed problematic. I don't see any yelling involved. That is the kind of exchange that should take place more often around here. In fact, Andrew and I actually agreed in the end. Which is not unusual. Andrew tends to make a coherent point and back it up with logic and/or precedent.
Now, here is William Faulkner yelling.
RAZOY YOU IGNORANT **** SHUT YOUR PIEHOLE IF YOU ARE GOING TO POST THEN YOU NEED TO THINK FIRST AND TRY TO READ AND COMPREHEND OTHERWISE YOU ARE WASTING EVERYONE'S TIME YOU SILLY LITTLE ****
See the difference?
I'm not sure I see what your point is exactly. The trials at Gitmo are problematic on many many levels even if you take the torture out of the equation. If you don't agree then fine. But on mp.net people don't usually let the fact that they don't understand get in the way of their "disagreement." I'm assuming you fall into this category. If I am wrong then by all means, let's discuss the intracacies of the legal process that will occur at Gitmo. You go first. Calanen has already gone a long way to asking questions which your "system" won't be able to handle but by all means carry on.
hank
razor_baghdad - I think you need to try and read and comprehend. Andrew Chalmers made a blanket statement about hearsay which I said would not work. When he read my post he said that he had misspoken and corrected himself. To which I replied and agreed that the corrected statement he had made was indeed problematic. I don't see any yelling involved. That is the kind of exchange that should take place more often around here. In fact, Andrew and I actually agreed in the end. Which is not unusual. Andrew tends to make a coherent point and back it up with logic and/or precedent.
Now, here is William Faulkner yelling.
RAZOY YOU IGNORANT **** SHUT YOUR PIEHOLE IF YOU ARE GOING TO POST THEN YOU NEED TO THINK FIRST AND TRY TO READ AND COMPREHEND OTHERWISE YOU ARE WASTING EVERYONE'S TIME YOU SILLY LITTLE ****
See the difference?
I'm not sure I see what your point is exactly. The trials at Gitmo are problematic on many many levels even if you take the torture out of the equation. If you don't agree then fine. But on mp.net people don't usually let the fact that they don't understand get in the way of their "disagreement." I'm assuming you fall into this category. If I am wrong then by all means, let's discuss the intracacies of the legal process that will occur at Gitmo. You go first. Calanen has already gone a long way to asking questions which your "system" won't be able to handle but by all means carry on.
hank
Damn that Freud..
hank...Thanks for proving my point.....insisting that I'm a stupid moron that should bend at your beck and call and heed every word you speak as gospel......
Andrew did indeed make valid points, you have not. Once you do, which you still have not, we'll trade opinions...'til then....let the insults fly...
You've already discussed your thoughts on the legal intricacies and I've discussed mine.....of which neither of us know much....that does not mean your insult that I don't understand and you do to be a true statement...it means we aren't there in the courtroom and won't know....
You've also called me a flaming jackass which does not lend me to want to discuss anything with you....
Once again...You've proven my point for me....
As for me...I'm ignoring your assinine barbs for now until you can put a coherent sentence together......
I agree with Calanen on his intelligent conversation.....I'm still waiting on you to change my mind with the same intelligence....in place of demands and insults...
Andrew Chalmers
05-05-2008, 08:54 AM
Regardless of whether you think waterboarding is torture or not - we can all agree that it is a method of interrogation intended to compel the subject to talk/end defiance by putting the individual in a situation they want to get out of.
It is psychologically no different than say - removing one's nails with a pair of pliers, hooking up a person's ears with a battery, or say... raping or threatening to rape their comrades or family - to get someone to talk. The difference between semantics is largely attributable to one's view of physical vs. psychological torture, and politics. If you want to argue that waterboarding of all detainees is "legal" and not "torture," then you implicitly accept the right of any enemy fighting force, legitimate under the laws of war or otherwise, to waterboard any American or ally detainee, uniformed or not. After all, every individual who isn't one of the enemy could be an American intelligence official. Every American soldier, from the highest officer to the lowest ranking enlisted, may have pertinent information that may save enemy lives.
The whole "our enemy don't respect these rules" argument is short-sighted; because by condoning our actions as being "legal," we lose the legal position to prosecute those who commit war crimes and violate the protected rights of POW.
In addition, while it may be difficult for some to imagine, it wasn't until Hamdi v. Rumsfeld that the current administration dropped its contention that the Executive Branch could hold US Citizens indefinitely without due process review from a judicial body. Jose Padilla, who is obviously no saint - but who was a US citizen on US soil, was held under military detention without judicial due process for 42 months without charge.
Now... think about the broad legal implications if we simply accept what the Executive Branch says. The President of the United States, may, at his discretion, order the military to detain anybody in the United States & in essence suspend Constitutional rights without declaring martial law (which requires an act of Congress) & hold them until he "deems" it necessary. Doesn't bother anybody one bit?
Damn that Freud..
hank...Thanks for proving my point.....insisting that I'm a stupid moron that should bend at your beck and call and heed every word you speak as gospel......
Andrew did indeed make valid points, you have not. Once you do, which you still have not, we'll trade opinions...'til then....let the insults fly...
You've already discussed your thoughts on the legal intricacies and I've discussed mine.....of which neither of us know much....that does not mean your insult that I don't understand and you do to be a true statement...it means we aren't there in the courtroom and won't know....
You've also called me a flaming jackass which does not lend me to want to discuss anything with you....
Once again...You've proven my point for me....
As for me...I'm ignoring your assinine barbs for now until you can put a coherent sentence together......
I agree with Calanen on his intelligent conversation.....I'm still waiting on you to change my mind with the same intelligence....in place of demands and insults...
Hey razor, check my profile. I'm very familiar with the legal intracies. Tend to get that way when you graduate from law school.
I was trying to be funny with my Faulkner thing. Guess it was over your head.
I'm not yelling at anybody but I don't see your point. If your point is that the Govt should be allowed to waterboard bc it may get them time sensitive intel then OK. But what does that have to do with admissibility in a trial? All you points relate things that have nothing to do with the trial. Its a bedrock principle of any good legal system that information gained through threatened or actual violence isn't admissible. What is different about this situation that should change that rule? Is there a specific reasons (other than we want to make sure and convict these guys) that I'm not seeing? If so, please let me know.
As to your hypothetical about my family I don't see the point. If someone killed my family I'd want justice. And justice requires fairness. I would hope that I wouldn't forget that just bc it was my family. But if I did, I would hope someone would point out to me that fariness is part of the deal. Remember that in our system some guilty people will always go free. It is a flawed system designed to insure that no innocent people are found guilty. The result of that soem guilty go free. I accept that.
I think you are making several flawed assumptions. First, you assume that just bc we waterboarded we should automatically get to use that info at trial. Not all evidence is admissible. Always been that way. Second, you assume that WB will stop if its not admissisble. Don't be naive. You and I both I know the CIA and others often do stuff in the name of Nat Sec that we neither know about nor need to know about. But that's irrelevant to the question of admissibility.
Now, you were going to explain the "legal" intricacies. I'm all ears.
hank
Doesn't bother anybody one bit?
Yes, that does/did/will always bother me.
hank
AC.....I'm looking at the WB cases from a different angle....and thanks for not yelling at me... :roll::roll:...lol
The bad guys are beheading folks, (those heads don't grow back) and at the same time we have gone to waterboarding as an extraction method.....not pulling fingernails....or battery zap to the earlobes/nads....
IMO the examples you use are in no way equivalent.
I do agree there will be problems in the trials.....Mistakes were made and will be brought to light as they should be.....It's a wait and see at this point...I expect some allies to go down in flames because of said mistakes, but I'd also like to know some of the info/intel that was extracted by 'other' means...
I see the agency and having to prove that WB works....by being forthright with info,.....again it's a wait and see.
I do appreciate the response....
hank hank hank....Always with the insults...as usual.....not a good way to express your point...putting someone in 'agressive/defensive' mode.
You didn't say anything different in your last post than you have before.....Intricacies??....you just restated your flawed opinions.....in longer sentences.....
Over my head?? try again.....Law school?? try again...
More insults?...proved my point again....
hank hank hank....Always with the insults...as usual.....not a good way to express your point...putting someone in 'agressive/defensive' mode.
I'm not insulting you. I'm: 1) disagreeing with you and 2) asking you to give up these intricacies you keep mentioning but not explaining. I'm happy to insult you if that is what you want.
You didn't say anything different in your last post than you have before.....Intricacies??....you just restated your flawed opinions.....in longer sentences.....
Please read my post again. I said very clearly that I don't understand your point. All your "time sensitive" arguments have nothing whatsoever to do with admissibility.
You say my "opinion" is flawed. Ok, why? I explained why yours is based on incorrect assumptions and the general disconnect between operational necessity and evidentirayr admissibility. What about that statment was unclear?
What about what I've said is "opinion?" Coerced testimony is usually inadmissible. That isn't an opinion. That is the rule of law. Admissibility is not a matter of opinion. It is application of law to a set of facts. And doing that in this case would result in the inadmissibility of statements yielded from waterboarding. But the govt changed the rule jsut for this proceeding to render them admissible. And nearly every legal scholar who has looked at that has said its problematic. Explain why they are wrong as a matter of evidence law.
Over my head?? try again.....Law school?? try again...
More insults?...proved my point again....
I'm glad I'm proving your point. You need the help. But even with that I think you are missing the point here. This thread is about the "legal" wrangling of a trial. Part of that wrangling is what evidence is admissible. And that is really distinct from the issue of whether WB is "right" or "necessary." Your posts indicate that you want to debate the "merits" of WB. This is not that discussion. This is about admissibility.
So, did you go to law school? Have you ever read Intruder In The Dust?
Now, as to the intricacies, I still don't see anything. Please tell all of us about these "intricacies." You said you want to debate this issue. Get started. I've dealt with the only point you've made that I understand. What else do you have?
hank
I'm smiling at you hank as you beat me senseless with your intricacies and opinions...
'JKS'
RB out.
I'm smiling at you hank as you beat me senseless with your intricacies and opinions...
'JKS'
RB out.
I figured as much. Been a great debate. Take care.
hank
Justice System For Detainees Is Moving At a Crawl
No Sept. 11 Trials Likely Before Bush Leaves Office, Officials Say
By Josh White
Washington Post Staff Writer
Tuesday, May 6, 2008; Page A01
GUANTANAMO BAY, Cuba -- At the end of a tattered, sun-baked runway dotted with large green tents here is a building aptly called the Expeditionary Legal Complex Courtroom, surrounded by coils of concertina wire, where the most notorious alleged terrorists in U.S. custody are supposed to face charges related to the Sept. 11, 2001, attacks.
Nearly seven years later, however, not one of the approximately 775 terrorism suspects who have been held on this island has faced a jury trial inside the new complex, and U.S. officials think it is highly unlikely that any of them will before the Bush administration ends.
Though men such as Khalid Sheik Mohammed, the alleged Sept. 11 mastermind, are expected to be arraigned in coming months -- appearing publicly for the first time after years of secret detention and harsh interrogations -- officials say it could be a year or longer before worldwide audiences will see even the first piece of evidence or testimony against them.
"I think it's a near-impossibility that these cases will be in court before the end of the administration," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch, who has observed numerous court hearings on the island.
"Some of the detainees haven't even seen their lawyers yet, there's incredibly complicated issues about access to evidence and discovery, and as we've seen with every single case to date, it's incredibly hard to move through a system that lacks established rules and precedent," she said. "Every little detail ends up being contested, because it's an entirely new system of justice."
That new system, set up by Congress's Military Commissions Act of 2006, so far has been entangled by numerous motions that challenge its fairness and constitutionality. Military officers presiding over the cases have had to make critical decisions on the fly, including some appealed to another new court created by the same legislation.
Although defense officials have said they want to start the Sept. 11 trials before the Bush administration ends -- and one high-ranking Pentagon officer has been quoted talking about the "strategic political value" of doing so before the November elections -- those involved privately agree that opening statements could be a year or more away.
Lawyers for some of the detainees jointly charged in the 2001 attacks say they are going to have to navigate an unprecedented volume of classified evidence and complex legal issues, and to mount a defense against the death penalty -- all matters that have not been adjudicated in earlier detainee cases.
Susan Crawford, who supervises the military commissions process, has not yet even formally referred the Sept. 11 cases to trial, although arraignments could occur a month or so later.
Air Force Brig. Gen. Thomas Hartmann, the top legal authority in the Pentagon's Office of Military Commissions, said: "Assuming it's referred, I expect there to be vigorous litigation by the defense community and the prosecution community." He declined to speculate how long it might take but said: "It will be helpful to the process for there to be a litigated case."
Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released Dec. 29.
None of the other 14 Guantanamo Bay detainees charged with crimes, including the six alleged Sept. 11 co-conspirators, has seen a courtroom for anything other than arraignments or legal motions.............
..........
The comparable figures in traditional U.S. criminal courts are less clear-cut, because the Justice Department has come under wide criticism for claiming terrorism-related convictions in cases that actually turn on immigration or other violations. But the Center on Law and Security at the New York University School of Law has identified Justice Department charges against 202 people in connection with terrorism offenses since Sept. 11, 2001, and finished trials for 116. Of those, 80 were convicted, the center said.
Notably, Zacarias Moussaoui was convicted in a U.S. District Court in Alexandria in May 2006 for links to the Sept. 11 plot and is now serving a life sentence in a Colorado supermax prison, a case that defense lawyers and human rights activists say is proof that such cases can, and should, be tried in U.S. criminal courts rather than by military commissions. They decry the military rules that allow coerced statements and hearsay into evidence and say there is no way the cases can be opened to the scrutiny they deserve.
"This is a self-inflicted wound," said Michael Berrigan, deputy chief defense counsel for the military commissions and a former longtime Army lawyer. "It's a sad day in the history of this republic when we have abandoned the rule of law."
Col. Lawrence Morris, the chief prosecutor for military commissions, said to the contrary that different rules are required for "enemy fighters" captured on a battlefield -- where evidence is collected under different procedures -- than ordinary criminal defendants. Even the interrogations of such detainees are focused more on gathering "wartime intelligence, not . . . criminal prosecution," he said.
Authorities here had hoped that the first full military commission case, against Salim Ahmed Hamdan, a Yemeni who was an alleged driver for Osama bin Laden, would proceed smoothly. It is now scheduled to begin June 2. But last week Hamdan became the latest detainee to boycott the process, arguing that he wants no part in the military commissions because they do not reflect American justice.
In a 40-minute exchange with Navy Capt. Keith J. Allred, who is presiding over the case, Hamdan said that he would do anything to get into a regular American courtroom and that the military commissions process is a sham designed to trap him at Guantanamo Bay. He said his victory in a 2006 Supreme Court case, which forced the government to rewrite the rules for military commissions, was hollow because he has been incarcerated for seven years without any change in his conditions.
"I would like the law, I would like justice. Nothing else," Hamdan said.
Hartmann, who colleagues say has been trying to accelerate the process, responded that "the trials are not going to be held up because an accused exercises his right not to be present." He said that defendants have the right to waive their presence at the hearings and that it is up to them to choose. He also said the military commissions system affords defendants "astounding" rights that in some cases exceed the rights received by members of the U.S. military who are tried at courts-martial.
But Daskal of Human Rights Watch said trials without defendants present "would be a disaster" and the "last thing America needs" because of existing perceptions of unfairness in the process.
Hamdan's motions hearings have highlighted concerns that are likely to arise before all the military commissions, including whether rules allow defense attorneys to adequately represent their clients and gain access to government evidence. Even the interpreting at last week's hearing was fraught with technical difficulties, delaying the proceedings.
Berrigan testified last week that military defense teams do not yet have an appropriate secure facility to use in representing clients such as Mohammed, the alleged Sept. 11 mastermind, whose conversations are classified at the highest level of secrecy. The installation of secure computers at the teams' Virginia office is still underway, and defense attorneys must carefully isolate their classified conversations about different clients because of potential legal conflicts.
Navy Lt. Cmdr. Brian Mizer, who represents Hamdan and alleged Sept. 11 co-conspirator Ali Abdul Aziz Ali, said he thinks Ali's case will take a long time to get to court.
3rd and final page at the link:
http://www.washingtonpost.com/wp-dyn/content/article/2008/05/05/AR2008050502315_3.html
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