Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, August 02, 2006

Magna Carta, Schmagna Carta

Thanks to RBR for showing me that the Bush Administration has released its new proposed rules for its "trials" for the persons imprisoned at Guantanamo. To summarize, "Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors." (Washington Post).

The good news is that such rules are easy to implement - the last time we had such rules was in Salem in the 1690s. Hearsay and coercion were acceptable methods of obtaining evidence of sorcery, and those trials put an end to witchcraft for good (there's none now...).

Of course, unlike the Bush's proposed rules, the full text of the Salem trials are open to the public, for our edficiation. A good example of hearsay testimony at work:
"The Deposition of susannah shelldin aged about 18 years who testifieth and said that on this 2 June 1692 I saw the Apperishtion of Bridgit Bishop.and Immediatly appeared to little children and said that they ware Thomas Greens two twins and tould Bridget Bishop to hir face that she had murthered them in setting them into fits wher of they dyed ." Guilty 0f murder, no doubt.

If those are the rules, why bother to have a trial at all? Why is they in prison if they ain't guilty?


Anonymous said...

I also read that the proposal allows Rumsfeld as Secretary of Defense to unilaterally determine which crimes would be under the tribunal's jurisdiction. So not only would the tribunals go against 1000 years of Anglo-American judicial tradition and procedure, it would enable the chief executive or his agents "venue shop." That is, if Bush et al thought they wouldn't get a conviction in a civil court, they could just get Rummy to change the venue under his authority as Secretary of Defense.

This is naked tyrrany! There is no ambiguity about what the Bush administration is now trying to do. If this proposal passes, no political opponent of the Republican party would be safe. Vote Democrat in 2006!!

PS: Hey LTG, I wonder what Schwarzenegger would say about this proposal. No doubt he finds it a reasonable response to terrorism. 

// posted by Raised By Republicans

Anonymous said...

There's no reason why people sitting in jail for years can't have a full hearing on whether, in fact, they even were enemy combatants. If determined to be an enemy combatant, they can of course be held under the rules of war.

This isn't about letting terrorists go free - it's about determining if they are terrorists in the first instance.

Republicans just don't believe in democracy or freedom - they just cynically use those words to justify enriching themselves. 

// posted by LTG

Dr. Strangelove said...

Assuming the Bush administration actually believes what they are doing is necessary for national security (rather than the alternative: that they deliberately are using the so-called "war on terror" as an excuse for laying the foundations for a police state), then I suppose they must be convinced that using standard procedures--even military procedures--would expose critical intelligence secrets and possibly let these people go free.

What bothers me is that, other than vague assertions that this is a "new kind of war" (and don't GET me started on that one...) I have not heard any reason to believe that standard procedures are unworkable. Unless they can make a VERY convincing case for abandoning it, the wise thing to do is to stick with the notion of due process we've hammered out over 800 years of jurisprudence.

Anonymous said...

Dr. Strangelove, I'd like to get you started on the new kind of war idea. Are you suggesting that this isn't a new kind of war? I'm intrigued.

I find it interesting that when it serves their rhetorical purposes, this is "a new kind of war." But they also claim it's just like World War II. As has become increasingly true with Republicans, they're wrong both times. Dr. S. please explain. 

// posted by Raised By Republicans

Dr. Strangelove said...

RbR, I have a feeling my answer will disappoint. There have been already a couple of posts over the past month or so in which I have argued that the war metaphor is lousy and, if we must speak of the post 9/11 world as a new kind of something, then "a new kind of peace" is a better way of explaining the current situation. The war metaphor made sense when we invaded Afghanistan--it wasn't a metaphor at all--but that part of it is done.

The war metaphor fails now for the simple reason that there is no military solution to terrorism. The solution is not that easy--we can't just shoot at someone. Fighting terrorism requires increased vigilance, improved security at home, better intelligence gathering, and international cooperation with all of these things.

And then I suppose the question is, what's really new about the post-9/11 world? There is a new kind of terrorism... or more accurately, a new scale of terrorism. It used to be small and local, now it's big and global. Kinda like everything else in the 21st century.

The long reach of terrorist organizations now means that we can no longer ignore terrorist organizations other countries. We all have the same backyard now, and the nasty shit that grows in it can affect all of us. Frankly, I agree with the "Bush Doctrine" to the extent that I agree we need to pre-emptively go after states that allow terrorism to grow within their borders... I agreed with the invasion of Afghanistan to try to get rid of a breeding ground. So did most people.

But the Bush Doctrine never applied to Iraq, because it was neither a failed state nor a source of terrorism. And we've practically abandoned Afghanistan, which means that Bush isn't even following his own doctrine there. We don't have a new kind of war; we have a new level of incompetence.

Anonymous said...

I would also point out that the while the new plan for the Bush tribunals was released to the press, it wasn't to the Senate Judiciary Committee or any other Congressional committees that would be interested in these tribunals. They found about through the press, as did RBR and LTG.

Furthermore, Rummy canceled his appearance before a Senate Committee yesterday because he "didn't have time". He is a political appointee who didn't have time to face the representatives of the American people who supposedly employ him.

Vote Democrat- period.

// posted by USWest

Anonymous said...

Dr. S suggests that "I suppose they [Bush Administration] must be convinced that using standard procedures--even military procedures--would expose critical intelligence secrets and possibly let these people go free."

No, that does not follow. They know  they don't have to let anyone go even if they are found innocent at a tribunal, as they may continue to hold them as a POW. They use the fear as a justification. There are plenty of procedures for keeping classified information safe during UCMJ hearings - has been for a century.

Their real motivations are several. 1. They need a super -high rate of conviction to justify Guantanamo. Kangaroo courts help. 2. They are anti-judiciary and stoke their supporters saying that liberal judges are soft on crime. So, to perpetuate that image, they insist on portraying the American judiciary as incapable of handling anything serious. If they trusted the courts to handle terrorism, they couldn't keep bashing them so much. 3. They just plain want to prove the Supreme Court wrong, by overruling them and "proving" that there is a need for harsher procedures than we have always used. They want to turn a political defeat into a victory of concerned Defenders of Freedom over an out-of-touch court. 4. They fear sharing power in the "war on terror" with anyone, so they want a process they totally control. 5. It is important to the Bush Admin that Congress roll over and be seen to roll over and support him 100%.

Most importantly, they want to use these courts as a precedent for undoing the Warren Court's "pro-criminal" bias. Remember, before the 1960s, there was no right to an attorney if you could not afford one, and no exclusion of evidence obtained improperly (e.g., through illegal searches or beatings). The remedy was to sue later for a violation of civil rights, which could bring $, but not a reversal of a conviction (in the absence of "any other" reason to believe the evidence was not real). And, of course, if you could afford an attorney, you could attack the evidence as untrustworthy b/c of its origin. Scalia in particular has made it clear that he wants to revert to this mode of justice. I should add that there was no RIGHT to an attorney, but most courts requried attorneys to represent the indigent as part of their bar membership, and in general most (white) defendants got attorneys since the civil war. 

// posted by LTG

The Law Talking Guy said...

My point, if not clear, is that this is part of a broad attack on the courts at the heart of the right wing agenda.

Anonymous said...

I agree. Thanks LTG for that reminder about what it was like BEFORE 1960. And let's remember that a lot of that, as you allude to, was pushed by racist politics.The same argument could still be made since mist" terrorists" as we know are "Arabs" and "Muslim".

It is ironic that a USSC, ruled over by conservative justices, is now a thorn in the side of the right wing agenda. The same 'victimized' right wing that thought the courts were its answer to all liberal evil. Gee, they are such flip floppers, such wishy washy types, these neo-cons.

The whole PATRIOT ACT turned evidence rules and privacy rights on their head. Exclusionary rules were legally well-established.

At the same time, they rely on Executive privilege to hide their own wrong doings. The people in this Administration need to be tried for treason and high crimes against the state.

Vote Democrat!

// posted by USWest