What the Fuck.
Jul. 28th, 2008 08:53 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumI kept trying to find something more useful as a title to this. Some clever turn of phrase, or pithy aphorism to countepoise the content to follow and put it in perspective.
That was the best I could do when I read this chunk of editorial from the Washington Post:
...modern realities strongly argue against using the federal courts as the exclusive arena to hold or try all terrorism suspects. Most terrorism prosecutions, including the 1993 World Trade Center case, are brought after terrorists have struck. The first priority of a president must be to protect the country from attack. The president must have the legal flexibility to detain those against whom there is credible, actionable intelligence but not enough evidence to bring charges.
As if that weren't enough: The protections afforded to defendants in federal court -- including the right against self-incrimination -- work against legitimate intelligence-gathering interests.
Who writes this stuff? Do they think about what they are saying? Detain those against whom a case can't be brought... because there isn't enough evidence.
To quote myself quoting Winston Churchill (that paragon the incipient fascists in our midst, the ones morons like the Editoral Staff at the WashPost are so fond of using to justify their brave support of the War in Iraq, and attacks on Iran; lest we be appeasers):
"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
So, not enough evidence... have a secret court Traditional federal court proceedings also present security challenges. Although the most sensitive national security information could be shielded from public consumption through existing laws, the openness of federal court proceedings risks handing unclassified but valuable information to those who would harm this country... so we can't let the people see what we are doing, besides... recall that pesky litle problem of the Constitution not requiring people to incriminate themselves?
The separate trial scheme for detainees later charged with crimes should feature slightly more relaxed evidentiary standards than those that prevail in federal court, but there should be robust defenses. It is highly unlikely that national security detainees could be tried in conventional federal court, in part because they would not have been afforded some of the procedural rights guaranteed to conventional defendants, such as the right to remain silent.
Why do we need to have these more lax standards?
without a new trial regime under the auspices of a national security court, the government would have a perverse incentive to hold detainees indefinitely without charge.
Just in case you were worried those special courts (with the "relaxed" standards of evidence) might make mistakes, or hand out sentences to meet an agenda, never fear, " Trials under a national security court would also be heard by a panel of Senate-confirmed federal judges; trial matters could be appealed to a special appellate panel..
We've seen how good the Senate is at making sure the President doesn't get to pack courts with reactionary types.
I dom't even know what to say about the idea that the courts are part of the intelligence collection efforts (that whole self-incrimination works against collecting efforts). That's just bizzaro world.
When you remember a federal court has said the power of the president to "dissapear someone" extends to US citizens, and wonder just what the Washington Post is arguing for.
It can happen here. If we don't agitate against it, it will happen here.
Your, "Liberal" media at work.
That was the best I could do when I read this chunk of editorial from the Washington Post:
...modern realities strongly argue against using the federal courts as the exclusive arena to hold or try all terrorism suspects. Most terrorism prosecutions, including the 1993 World Trade Center case, are brought after terrorists have struck. The first priority of a president must be to protect the country from attack. The president must have the legal flexibility to detain those against whom there is credible, actionable intelligence but not enough evidence to bring charges.
As if that weren't enough: The protections afforded to defendants in federal court -- including the right against self-incrimination -- work against legitimate intelligence-gathering interests.
Who writes this stuff? Do they think about what they are saying? Detain those against whom a case can't be brought... because there isn't enough evidence.
To quote myself quoting Winston Churchill (that paragon the incipient fascists in our midst, the ones morons like the Editoral Staff at the WashPost are so fond of using to justify their brave support of the War in Iraq, and attacks on Iran; lest we be appeasers):
"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
So, not enough evidence... have a secret court Traditional federal court proceedings also present security challenges. Although the most sensitive national security information could be shielded from public consumption through existing laws, the openness of federal court proceedings risks handing unclassified but valuable information to those who would harm this country... so we can't let the people see what we are doing, besides... recall that pesky litle problem of the Constitution not requiring people to incriminate themselves?
The separate trial scheme for detainees later charged with crimes should feature slightly more relaxed evidentiary standards than those that prevail in federal court, but there should be robust defenses. It is highly unlikely that national security detainees could be tried in conventional federal court, in part because they would not have been afforded some of the procedural rights guaranteed to conventional defendants, such as the right to remain silent.
Why do we need to have these more lax standards?
without a new trial regime under the auspices of a national security court, the government would have a perverse incentive to hold detainees indefinitely without charge.
Just in case you were worried those special courts (with the "relaxed" standards of evidence) might make mistakes, or hand out sentences to meet an agenda, never fear, " Trials under a national security court would also be heard by a panel of Senate-confirmed federal judges; trial matters could be appealed to a special appellate panel..
We've seen how good the Senate is at making sure the President doesn't get to pack courts with reactionary types.
I dom't even know what to say about the idea that the courts are part of the intelligence collection efforts (that whole self-incrimination works against collecting efforts). That's just bizzaro world.
When you remember a federal court has said the power of the president to "dissapear someone" extends to US citizens, and wonder just what the Washington Post is arguing for.
It can happen here. If we don't agitate against it, it will happen here.
Your, "Liberal" media at work.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2008-07-29 05:38 am (UTC)I sometimes have the (hopeless) feeling that it has happened here, that it is happening here, and that it will continue to happen here, to a worsening degree, whether we agitate against it or not. Conscience demands, of course, that we continue to Speak Out against this drift towards Totalitarianism, as long as we are able to.
no subject
Date: 2008-07-29 03:48 pm (UTC)The dissent in...Hamdan? (it's either Hamdan or Hamdi) Sorry, don't have my Constitutional Law textbook to hand...terrifies me. One of the justices of the Supreme Court parroting the Executive's argument almost verbatim. Incidentally, it was Constitutional Law that I got a 'Distinguished Performance' notation in last year - probably because of how fiercely I defended my interpretations of the Constitution and used precedent to back up my arguments.
no subject
Date: 2008-07-29 04:28 pm (UTC)It scares me that I may have to depend on him.
(the case you are thinking of is Hamdi, though neither of the ConLaw casebooks I have make any reference to it... they aren't new enough).
no subject
Date: 2008-07-29 06:23 pm (UTC)no subject
Date: 2008-07-30 10:11 pm (UTC)Makes the job harder, that, but if I'm to continue to live with a government that I can feel even remotely safe in, it's worth the minor reduction in safety that speaking out entails to avoid the major reduction in safety not speaking out results in.
no subject
Date: 2008-08-01 08:07 am (UTC)Whut.
Surely I am reading this wrong. The writer didn't actually suggest that the problem with the current system is that it actually waits for a crime to be committed before prosecuting for committing the crime. Because that would be crazy-talk, on par with saying something like the openness of federal court proceedings risks handing unclassified but valuable information to those who would harm this country (because if it's unclassified, surely we shouldn't have to create a brand-new court system to avoid exposing it to the outside world...?).
without a new trial regime under the auspices of a national security court, the government would have a perverse incentive to hold detainees indefinitely without charge.
Or you could give the whole Constitution thing a shot, try trying them with all those crazy protections and stringent evidence standards.
This is like going up to someone and saying, "I don't want to shoot you, but if you don't dye this shirt green I won't have anything green to wear for St Patrick's Day so I'll have a perverse incentive to shoot you." I mean, what? "Oh those crazy liberals, they don't like it when we indefinitely detain people without trial and they don't like it when we try people in kangaroo courts! There's no pleasing 'em!"
Your, "Liberal" media at work.
My dad said something about "of course, it's because the media are all so liberal" today, mid-political conversation. I just said "ooookay..." and went back to arguments I can win (i.e., dropping my favorite McCain quotes wherever I can, in the hopes it'll help keep him in support of the Mickey Mouse ticket, which I consider to fall under "anybody but McCain"). It's still a shock coming off the Internet and encountering people who still believe that talking point.
-Gwen, who has no LiveJournal account and mostly lurks anyway.