obama to close gitmo, move trials to U.S. soil (with civil rights!)

[lysistrata]

yayyyyyy

http://www.msnbc.msn.com/id/27640617/

so, unsure on how all this is going to play out--where do you find a balance between uber-secret/illegal/classified prisons and a full U.S. trial with civil rights and lawyers and whatnot? undoing bush's extra-constitutional policies is still going to result in extra-constitutional shit. one can't simply unmake all this illegal policy from the last 8yrs; how do you guys think this is going to work out?

[name change request]

Obama won't be able to do it all, we will need a couple decades of cleaning up to fix all that is wrong.

[Hubb]

i think its a great start

[PETA]

Originally Posted by lysistrata

yayyyyyy

http://www.msnbc.msn.com/id/27640617/

so, unsure on how all this is going to play out--where do you find a balance between uber-secret/illegal/classified prisons and a full U.S. trial with civil rights and lawyers and whatnot?

Well, when you capture a man shooting at US troops in Afganistan reasonable minds could easily agree that he's not entitled to a criminal trial in American civilian courts.

The Boumediene case extended "rights" to Gitmo prisoners that exceed those given the lawful combatants classified as POWs. The Gitmos detainees do not rise to the level of POW yet they have Habeas rights? Geneva excluded from its protection terrorists because it did not wish to encourage that method of warfare. Our court in all its wisdom has no made it more advantageous, when fighting Americans, to conduct one's tactics in a manner that would explicitly deny that they are lawful combatants.

I can understand that this is a novel situation and it requires novel approaches. I agree that we need to try these cats or kick them. But the ruling from SCOTUS was about as bad a decision as could be imagined and further it toosed out the Executive/Legislative compromise on the issue that SCOTUS had originally demanded.

Oh, and it wasn't illegal. The court created something that didn't exist prior. Its hard to infringe upon a right that the court only recently conjurred into existence.

[name change request]

like you said... it's a reasonably new situation and something needs to be done other than just locking them up and throwing away the key.

are you against the ICC?

it's a subject that i'm not too up on so i can't get into some big argument about it but imo there should be something like the ICC or the ICC itself that tries these types of cases and it should be made as fair as possible.

it seems to me that the old POW rules (if they are called that) can't really be applied as they have been in the past with terrorists so you have to go the criminal route.

[PETA]

Originally Posted by joel

like you said... it's a reasonably new situation and something needs to be done other than just locking them up and throwing away the key.

are you against the ICC?

it's a subject that i'm not too up on so i can't get into some big argument about it but imo there should be something like the ICC or the ICC itself that tries these types of cases and it should be made as fair as possible.

it seems to me that the old POW rules (if they are called that) can't really be applied as they have been in the past with terrorists so you have to go the criminal route.

There are many reasons I do not support the ICC. Here I do not because the people at issue are our problem - not ICC's.

Yes, a new approach is absolutely required. But it shouldn't be one that offers greater protection to terrorists than POWs.

The Boumediene case threw out the compromise legislation set up to try these detainees. It struck a balance between securing classified information and securing a fair trial for the detainees. To give some clarity to this balance - when the blind shiek was tried his attorney leaked classified information to the Shiek's compatriots. She got caught and went to prison. There's no telling what damage resulted from the information she passed along. Preventing that from happening is a legitimate concern. So is the fair trial. SCOTUS told congress to come up with a scheme to do this. They did. SCOTUS tossed the legislation. Procedurally it adds a step or two to get the detainee to the point where the legislation started him. Its a mess and SCOTUS made it worse imo.

[name change request]

okay, fair enough. i just don't think that whatever process they come up with should be geared towards the worst possible scenario which is what it seems like you think should be done.

it shouldn't be GREATER protection than POWs but it should be EQUAL regardless of the severity of the actions. the punishment should be greater but the process should be equal is my opinion. whereas POWs are released, i assume, at the end of the war... terrorists who commit certain actions shouldnt be let free.

you talk about the Blind Shiek but what about the people locked up in Gitmo that aren't that severe... in fact, i believe i read a story about some displaced people (i believe Asian) that were locked up in Gitmo simply because no one knew what else to do with them. i can go find the story again if you'd like a link but that was the jist of it.

[PETA]

Originally Posted by joel

okay, fair enough. i just don't think that whatever process they come up with should be geared towards the worst possible scenario which is what it seems like you think should be done.

No, I used the word balance for a reason. There are competing valid interests and a balance between them needs to be found. The simple fact is that all the evidence in possession of the state cannot be available due to security concerns. That being true it cannot be admissible at trial either. I sited the blind shiek's atty just to point out that the risk I mention is real.

Originally Posted by joel

it shouldn't be GREATER protection than POWs but it should be EQUAL regardless of the severity of the actions.

The drafters of Geneva and I disagree with you. If there is no disincentive for behavior that the drafters agreed was outside the proper rules of war then there's no reason to conform one's actions within them.

Originally Posted by joel

the punishment should be greater but the process should be equal is my opinion. whereas POWs are released, i assume, at the end of the war... terrorists who commit certain actions shouldnt be let free.

POWs are legally held until the cessation of hostilities. They may not be tried. Unlawful combatants may be tried. The problem with your scenerio is that it creates very little disincentive for terrorrists and terrorist activity.

Originally Posted by joel

you talk about the Blind Shiek but what about the people locked up in Gitmo that aren't that severe... in fact, i believe i read a story about some displaced people (i believe Asian) that were locked up in Gitmo simply because no one knew what else to do with them. i can go find the story again if you'd like a link but that was the jist of it.

Like I said in the first comment... try them or kick them. If there is no case to be made they should be released. If there is a case to be made - make it - and abide by the court's findings.

[tricky]

The problem with Gitmo is that the majority of people there were not captured in combat. They were turned over by tribal chiefs and other locals. For all we know it could be me trying to turn in Xian cause i disagree with him. You have to have some sort of Habeas hearing to determine if they are a legitimate threat. The mess would not be getting worse if the current administration would read the constitution before they write some of this complete garbage like the Military Commissions Act. SCOTUS acted proper in throwing it out. The executive branch cannot be the sole arbiter of declaring combatants, CSRT's, and tribunals.

[name change request]

Originally Posted by St. Stalin the Apathetic

POWs are legally held until the cessation of hostilities. They may not be tried. Unlawful combatants may be tried. The problem with your scenerio is that it creates very little disincentive for terrorrists and terrorist activity.

let's be real here for a second. what do you think could possibly be done to persuade a would-be terrorist from going through with their actions? we are living in the age of suicide bombers here. they are willing to die, what are you gonna do to persuade them not to do that?

there is only one thing you can do and it has nothing to do with threatening punishment.

and my opinion on this doesn't just have to do with terrorists, it has to do with all crimes really.

Like I said in the first comment... try them or kick them. If there is no case to be made they should be released. If there is a case to be made - make it - and abide by the court's findings.

i agree, the problem is that isn't how it's being done. the very existence of Gitmo has made it possible for those in power to abuse it's use.

[PETA]

Originally Posted by joel

let's be real here for a second. what do you think could possibly be done to persuade a would-be terrorist from going through with their actions? we are living in the age of suicide bombers here. they are willing to die, what are you gonna do to persuade them not to do that?

Sure. Murder is illegal and people may be executed for it and people still do it. That doesn't mean we lighten up because some fools don't care. It is impossible to poll people to find out how many didn't commit a murder becasuse they were afraid of the punishment. So too can we never know how many would be terrorists didn't do something because of potential harsh punishment. We know that upper echelon terrorists are quite averse to dying. They take great steps to avoid it. Not all terrorists are deterrant proof.

Originally Posted by tricky

The problem with Gitmo is that the majority of people there were not captured in combat. They were turned over by tribal chiefs and other locals. For all we know it could be me trying to turn in Xian cause i disagree with him. You have to have some sort of Habeas hearing to determine if they are a legitimate threat. The mess would not be getting worse if the current administration would read the constitution before they write some of this complete garbage like the Military Commissions Act. SCOTUS acted proper in throwing it out. The executive branch cannot be the sole arbiter of declaring combatants, CSRT's, and tribunals.

Right - which is why I said try them or kick them. SCOTUS' decision was foolish at best. The executive quite specifically IS the chief prosecutor. Here however it set up its process with the advice consent and legislative compromise of Congress. The process provided the equivalent of a preliminary hearing to determine if the detainee was or was not an unlawful enemy combatant. If they were not - then they were to be let go. That was in the legislation SCOTUS tossed.

[tricky]

Originally Posted by St. Stalin the Apathetic

Right - which is why I said try them or kick them. SCOTUS' decision was foolish at best. The executive quite specifically IS the chief prosecutor. Here however it set up its process with the advice consent and legislative compromise of Congress. The process provided the equivalent of a preliminary hearing to determine if the detainee was or was not an unlawful enemy combatant. If they were not - then they were to be let go. That was in the legislation SCOTUS tossed.

What process are you talking of. The MCA stripped them of their right to habeas corpus and gave them this CSRT's, which have been repeatedly shown to be an unconstitutional substitute.

[PETA]

Originally Posted by tricky

What process are you talking of. The MCA stripped them of their right to habeas corpus and gave them this CSRT's, which have been repeatedly shown to be an unconstitutional substitute.

What SCOTUS found and what makes sense are two different things. SCOTUS isn't last because its right.... its right because its last.

SCOTUS decided that American civilian constitutional protection applies to non-Americans who committed their "crimes" not in America simply because they are in American custody.

Yes, the process set up by Congress was in military courts. What you're asserting is that the system that our own soldiers are subject to is not sufficient to guarantee the "rights" of terrorists.

In any event we were arguing what we thought the process should be. I believe SCOTUS made a horrible decision. I believe the system set up by Congress and POTUS made sense and struck a balance that was liveable. None will be perfect. In no case do I think combatants captured on foreign soil should have access to our civillian courts. Give them the preliminary hearing.... if they weren't combatants let them go immediately.

[tricky]

Originally Posted by St. Stalin the Apathetic

What SCOTUS found and what makes sense are two different things. SCOTUS isn't last because its right.... its right because its last.

SCOTUS decided that American civilian constitutional protection applies to non-Americans who committed their "crimes" not in America simply because they are in American custody.

Yes, the process set up by Congress was in military courts. What you're asserting is that the system that our own soldiers are subject to is not sufficient to guarantee the "rights" of terrorists.

In any event we were arguing what we thought the process should be. I believe SCOTUS made a horrible decision. I believe the system set up by Congress and POTUS made sense and struck a balance that was liveable. None will be perfect. In no case do I think combatants captured on foreign soil should have access to our civillian courts. Give them the preliminary hearing.... if they weren't combatants let them go immediately.

They're not all terrorists. A majority were handed over to the americans by tribal leaders. see previous post....

The only thing being afforded is the writ of habeas corpus. They will be tried, we just to need to create an adequate system. Bush doesn't even believe they should be given afair preliminary hearing
see also:
Magna Carta
Petition of Rights
English Bill Of Rights
Federalist No. 84 "....arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny."-Hamilton
US Constitution. Article I, Section 9

Barack was a consitutional law scholar, I'm sure he's much more capable of setting up a legal system to deal with this mess than his predecesor. Hopefully we can remove this stain on our reputation and tape that constitution back together with a quickness.

[PETA]

Originally Posted by tricky

They're not all terrorists. A majority were handed over to the americans by tribal leaders. see previous post....

Agreed which is why I keep pointing out that they should have an immediate hearing tyo make that determination... to decide if there's evidence of sufficient weight and merit to consider them terrorists. If not - send them home immediately. We don't disagree on this point though you keep responding as if we do.

Originally Posted by tricky

The only thing being afforded is the writ of habeas corpus. They will be tried, we just to need to create an adequate system. Bush doesn't even believe they should be given afair preliminary hearing
see also:
Magna Carta
Petition of Rights
English Bill Of Rights
Federalist No. 84 "....arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny."-Hamilton
US Constitution. Article I, Section 9

None of which apply to people whose alleged bad acts happened in Afganistan.

Yes, Bush did think they deserved a preliminary hearing - so did Congress - it was in the bill that got tossed.

Originally Posted by tricky

Barack was a consitutional law scholar, I'm sure he's much more capable of setting up a legal system to deal with this mess than his predecesor. Hopefully we can remove this stain on our reputation and tape that constitution back together with a quickness.

Well, if he thinks constitutional rights extend to crimes committed by non-Americans over seas then he's not a very distinguished one.