Topic: Ignoring the rights of the accused does not make us safer (Read 8772 times)

Demosthenes · « **on:** June 28, 2004, 02:25:27 PM »

The PATRIOT Act has some serious implications to anyone concerned about individual rights being largely relegated to secondary or tertiary status in favour of a more "secure" state of affairs in this country.

And those implications and concerns are valid... they're the main reason why others like myself have been as outspoken as possible in pointing out the dire damage to our liberties and privacy the PATRIOT Act has already done and could still potentially do if these implications are not addressed with reference to the US Constitution very shortly.

But there is another concern that I don't think is getting the coverage it deserves.

There IS a safety concern with the PATRIOT Act. Because it essentially ignores certain rights and gives the Federal Government almost carte blanche to tread roughshod over due process and significant portions of the Bill of Rights, there stands a very real danger of individuals being convicted under the PATRIOT Act of being set free.

Don't get me wrong here... I think the bulk of the people being held right now by the government in connection with terrorism are probably not very safe to just let go.

But because of the inherent unconstitutionality of the means the government is using to hold, interrogate, and try these people, the likelihood is that any of them that actually is found guilty will have their cases overturned on appeal in a heartbeat.

And set free.

This administration's insistence on differentiating between people deserving of human rights recognition and "enemy combatants" is going to lead to MORE terrorists on the loose, not fewer.

This article demonstrates the kind of thing that can happen, from a judicial perspective. Take this bit, for example:

Quote

Two other justices, David H. Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper. Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court.

Hamdi and Padilla are both scumbags that most certainly should NOT be on the loose.

But because of the governments overzealous methods in apprehending them and holding them indefinitely without a trial, charges, or access to counsel, that is quite likely going to be the case.

This administration's stance on being tough on terrorism is likely going to lead to MORE terrorists being free to go on technicalities. Likewise, most of the individuals being held in Guantanamo will have a chance to get themselves cut loose as well.

And is this the court's fault? Not at all. It is the fault of the tactics used by the government to hold them. Most of those prisoners at Gitmo are pretty awful, and are probably a danger to the world at large if set free.

But if given prisoner of war treatment or access to a fair trial, their likely disposition would not be dangerous... they would either be turned over to their former government (now an Afghan government that supports our efforts) or would be imprisoned as terrorists after a trial that would most likely lead to convictions for them and lengthy prison sentences.

But since they've been held for 2+ years without counsel, charges, or any heed at all paid to their rights, as soon as they complain in a legal sense about that injustice at the hands of the US government, they will likely be set free.

I just don't see how that makes us "safer". Ignoring civil rights and human rights does not put more people who would do us harm "out of the way". It just ensures that when the courts finally do have access to them, they will be liberated.

That doesn't help at all.

Right about now, I'd hate to be a Federal Prosecutor.

Prosecutor: Your Honor, I have these charges that we are now ready to file against the defendant, Jose Padilla--

Judge: And you've held him for how long now?

Prosecutor: Er.... uh, two years. A little more than that, actually--

Judge: And when he asked for counsel during interrogations, was he provided with access to an attorney?

Prosecutor: Uh... no. But he's an "enemy combattant" and has no right to--

Judge: *waves hand* Myself and the Constitution beg to differ. And was he given any kind of chance to provide for his own defense?

Prosecutor: Um... no, but--

Judge: Ever charged him before now?

Prosecutor: No, but--

Judge: Given opportunity to even have bail set?

Prosecutor: No, we never--

Judge: And where is the warrant to perform the search and wiretaps with which all this evidence you are presenting was obtained?

Prosecutor: Well, you see, under the PATRIOT Act, we don't have to present a warrant publically, because--

Judge: So all of this evidence was gathered without benefit of a valid warrant?

Prosecutor: No... I mean--

Judge: Case dismissed. The defendant is free to go.

reimero · « **Reply #1 on:** June 28, 2004, 02:28:56 PM »

Our system was set up with checks and balances for a reason, and I, for one, am glad the Supreme Court put their collective feet down and stated that the war on terrorism can go on, but not at the expense of our basic principals of due process.

Had the decision gone the other way, really, what's to have prevented GWB from claiming he had "evidence" that John Kerry was actually an "enemy combatant" and ordered him detained without access to legal council or the courts or any sort of oversight? That kind of power is PRECISELY what gives the likes of Hitler and Stalin and Hussein the leeway they need to seize total control. Claim you need a special power for the "greater good" and then abuse it for your own personal gain.

Anonymous · « **Reply #2 on:** June 28, 2004, 02:31:29 PM »

Will they also change the phrase "inocent until proven guilty" to "Inocent until suspected"?

Demosthenes · « **Reply #3 on:** June 28, 2004, 02:31:40 PM »

Exactly.

Not to mention, as was my main point in this, if the courts ever DO get the chance to review such cases, suddenly you have someone that may under normal circumstances, if given a fair trial, been sentenced to life in prison... but now because of the total disregard for due process, the court is going to be setting free.

Feh.

phyre · « **Reply #4 on:** June 28, 2004, 06:19:45 PM »

"A dictatorship would be a lot easier," - George W. Bush, President of the United States

Hmmmm.

Binoboy · « **Reply #5 on:** June 29, 2004, 12:18:09 AM »

But didn't you see that episode of Tough Crowd?

Jose Padilla was a thug and a ne're-do-well, so he deserves what he gets. Even if he hasn't committed this crime, he would have committed another, but that's impossible because he obviously committed this crime. Else he wouldn't be imprisoned, now would he?

The Patriot Act doesn't affect anybody's rights. Have you ever met anybody whose rights have been infringed upon by the Patriot Act? Oh nevermind, all you liberals do is criticize. You can never come up with any solutions. And of course you always get so worked up over the "rights" of prisoners.

Rico · « **Reply #6 on:** June 29, 2004, 01:06:38 AM »

Hey, just to point something out... The Patriot Act does not keep you from needing a warrant. It only makes it so that you get a warrant for a person, and it covers all of their activities. Before, you had to get a warrant for every single phone, vehicle, whatever. Now, you prove that the person is a threat to National Security, and you get a warrant for everything that involves them.

Basically, you don't have to plead the same case over and over again.

I'm not saying that I agree with the Act, but you're misrepresenting this part of it. I'm sure it's unintentional. I didn't know it either until I got State-side. We have to be extremely careful not to violate people's rights, and training on the Patriot Act was part of it.

I have a question, though. Say some one is captured on the field of battle. Do they have the same Constitutional rights as an American?

If not, say that person happened to be an American. As they just betrayed their country, do they still have claim to those rights?

If the answer is yes, then I say we charge them with treason while we're at it, and deal out the ultimate penalty.

Law · « **Reply #7 on:** June 29, 2004, 08:24:08 AM »

Quote from: Rico

Hey, just to point something out... The Patriot Act does not keep you from needing a warrant. It only makes it so that you get a warrant for a person, and it covers all of their activities.

And that blank warrant can be issued by a secret court based on secret evidence that you and your lawyer will not even be allowed to see at trial. That is effectively the same as an arrest with no warrant and no charges.

Quote

I have a question, though. Say some one is captured on the field of battle. Do they have the same Constitutional rights as an American?

Define "field of battle." In announced combat with people on both sides in uniform representing UN recognized governments, then the US will acknowledge the Geneva Conventions and they will be a prisoner of war. No, not the same constitutional rights, but some rights. However we created this magical term "unlawful combatant," meaning we disagree with the fact that you are fighting us, so you have no rights. We will hold you indefinitely on no charges and deny you access to a court or to a lawyer. I know, I know members of al-Qa'eda are not military, blah blah blah.

The problem is we used this against members of the Taliban. No, the US did not recognize them as the government of Afghanistan, but guess, what? They were (except for a Tajik dominated 10% of the country), and those fighting on their behalf were effectively the military of Afghanistan. Yet, we have deemed them "unlawful combatants," and threw them in a hole to decide what to do with them later. (Ironically when the Taliban captures US troops we jumped up and down screaming that they had to be well treated under the Geneva Protocols...) It is apparently unlawful to resist an unauthorized invasion of your country by the United States. Take note.

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If not, say that person happened to be an American. As they just betrayed their country, do they still have claim to those rights?

Yes they do. Treason is a crime like any other. Murders do not lose their Constitutional rights, and they're killing Americans just like someone killing American abroad.

Quote

If the answer is yes, then I say we charge them with treason while we're at it, and deal out the ultimate penalty.

I would wholeheartedly agree.

I know perfectly well that Rico and I are going to have wildly varying views on most of this. I am not trying to start an argument on whether these policies are correct. All I know is under the law, they simply are not. As soon as we have secret trials, prisoners with no charges and we are creating terms to sidestep legal protections, we have violated the principles this country was founded on. That bothers me profoundly. I spent 21 months researching the cases pending in the USDC regarding the prisoners at Guantanamo, the Geneva Protocols and the Rome Treaty. I was horrified then, and it hasn't gotten any better.

Demosthenes · « **Reply #8 on:** June 29, 2004, 08:33:21 AM »

I was going to write a long, detailed rebuttal, but Law beat me to it.

I didn't mean to imply that the PATRIOT Act enabled law enforcement to do things with "no warrant"... I meant no valid warrant.

A secret warrant is not valid.

A secret trial, without the necessary, Constitutional benefit of public scrutiny, is not valid.

Evidence obtained in violation of the rights of the accused is inadmissible.

Those things tend to give the legitimate courts strong, solid reasons to dismiss such cases and set these people -- many of whom ARE potential dangers to the rest of us -- free.

Believe me... if any of these people are a danger to others or are real no-shit terrorists, I want to see them put away as much as you do.

But not by violating due process. That scares the bejesus out of me, and it should scare the bejesus out of you too.

reimero · « **Reply #9 on:** June 29, 2004, 08:48:14 AM »

Quote from: Demosthenes

I was going to write a long, detailed rebuttal, but Law beat me to it.

I didn't mean to imply that the PATRIOT Act enabled law enforcement to do things with "no warrant"... I meant no valid warrant.

A secret warrant is not valid.

A secret trial, without the necessary, Constitutional benefit of public scrutiny, is not valid.

Evidence obtained in violation of the rights of the accused is inadmissible.

Those things tend to give the legitimate courts strong, solid reasons to dismiss such cases and set these people -- many of whom ARE potential dangers to the rest of us -- free.

It's also why we're not a police state. It's why politicians continue to have to play the political game and are generally unable to seize too much power for too long. It's why the electoral process still matters. Human nature is such that those in power seek to increase that power. We're fortunate to have a system that has a smackdown built in so that if someone makes too much of a power grab, he gets put back in his place.

I see a lot of posts in a variety of places on why we should take a hard line on hardened criminals. I'm glad our courts have repeatedly upheld that the rights of the accused matter: not because we should coddle the guilty, but because we need to protect the innocent from being set up or persecuted for religious or political reasons.

We bitch a lot about the administration and the political system and our leadership. Recent rulings by the Supreme Court have reaffirmed my faith in our system of checks and balances. I may not agree with ALL their decisions, but I'm comfortable that they understand why we can't give the administration carte blanche what they want.

Demosthenes · « **Reply #10 on:** June 29, 2004, 08:53:38 AM »

It is far better to let ten guilty men go free than to hang one innocent one.

Rico · « **Reply #11 on:** June 29, 2004, 11:55:55 AM »

I could be wrong, I haven't read the entire Patriot Act, but from what I've seen the warrant is secret only while it's being used to obtain information. I will grant you that there are SOMEthings that are not allowed to be made public, but the wieght of the proof can be. You don't seem to realize that the Act was meant to allow intelligence agencies to track suspicious activity into the US. Before, anytime a US person even got mentioned, the whole thing went out the window. Now, it's easy to get a warrant that covers the whole thing and allows the military to work with the law enforcement to target terrorism the same way that they can target drugs. Same exact concept. Granted, some of it is classified and can't be revealed, but that's to protect collection techniques and assets. They sanatize the information and then use it. No they don't get to see all of it. It's like saying, "we heard him say it on this day, at this time. We're not going to tell you how we heard him say it, though."

Law · « **Reply #12 on:** June 29, 2004, 12:04:46 PM »

Actually entire prosecution records are being sealed under the Act and secret courts are handing down verdicts to prisoners who didn't even know their trials had started. I cannot defend myself in a court of law with a prosecuter who says "I have evidence against you. No, you cannot see it. No, the Judge will not tell you what it is." That's a trial? That's American justice now?

It's not that I "don't seem to realize," it's that I know its dangerous. The snowball is very easy to get rolling. I aslo know that nothing in the Patriot Act or its demon progeny says that its limited to targetting terrorist. That's even more dangerous.

reimero · « **Reply #13 on:** June 29, 2004, 12:18:58 PM »

Quote from: Law

Actually entire prosecution records are being sealed under the Act and secret courts are handing down verdicts to prisoners who didn't even know their trials had started. I cannot defend myself in a court of law with a prosecuter who says "I have evidence against you. No, you cannot see it. No, the Judge will not tell you what it is." That's a trial? That's American justice now?

It's not that I "don't seem to realize," it's that I know its dangerous. The snowball is very easy to get rolling. I aslo know that nothing in the Patriot Act or its demon progeny says that its limited to targetting terrorist. That's even more dangerous.

Can you prove that this is happenning? Or can you point to the part of the Patriot Act that permits this? I'm aware that courts can seal proceedings, but it's a fundamental right that the accused knows what is on the table.

Law · « **Reply #14 on:** June 29, 2004, 12:28:29 PM »

Quote from: reimero

Quote from: Law
Actually entire prosecution records are being sealed under the Act and secret courts are handing down verdicts to prisoners who didn't even know their trials had started. I cannot defend myself in a court of law with a prosecuter who says "I have evidence against you. No, you cannot see it. No, the Judge will not tell you what it is." That's a trial? That's American justice now?

It's not that I "don't seem to realize," it's that I know its dangerous. The snowball is very easy to get rolling. I aslo know that nothing in the Patriot Act or its demon progeny says that its limited to targetting terrorist. That's even more dangerous.

Can you prove that this is happenning? Or can you point to the part of the Patriot Act that permits this? I'm aware that courts can seal proceedings, but it's a fundamental right that the accused knows what is on the table.

It's actually the Patriot Act's older cousin the Secret Evidence Act that is being sued more often.

And can I prove it? Well, obviously not, because they're secret and I'm not cleared for that. But, you can open any legal journal and read article by lawyers jumping up and down becasue they're being denied access to their clients, they are being asked to defend cases without knowing the complete list of charges or seeing the documentary evidence being used against them, etc. I am fully aware that a broad consensus will now say that because no one can prove this is happening, it's not. But the complaints are piling up and I don't think everyone is making this stuff up.

The_FOO · « **Reply #15 on:** June 29, 2004, 02:42:52 PM »

There are no such thing as rights, only privileges.

These so called inalienable rights? Where is your right to life if some drunk runs you down? Happiness? Liberty? All can be taken away by some asshole with a bigger gun than you.

Just be glad you have that system of checks and balances down there to keep a reign on people like The Shrub, and Ashcroft.

reimero · « **Reply #16 on:** June 29, 2004, 02:59:25 PM »

Quote from: The_FOO

There are no such thing as rights, only privileges.

These so called inalienable rights? Where is your right to life if some drunk runs you down? Happiness? Liberty? All can be taken away by some asshole with a bigger gun than you.

Just be glad you have that system of checks and balances down there to keep a reign on people like The Shrub, and Ashcroft.

It appears you're confusing rights with guarantees. A right gives you legal standing and recourse. A guarantee is a promise that something will or will not happen. Rights can be abused, taken away, lost and trampled upon. The difference between a right and a privilege is that if you lose a privilege, it sucks to be you. If a right is violated, it's either because you did something to lose that right and had it stripped by an appropriate authority, or because someone else violated that right, in which case you (or your representatives) have the right to seek damages.

Let me put it another way: life is a right. If someone deprives you of that right, then you have:
a. been wronged;
b. done something to lose that right (such as threatening another person with bodily harm); or
c. had that right stripped by an appropriate authority for just cause (such as being found guilty of murder and sentenced to death.)
It is also possible that you are the victim of a terrible accident, but an accident negates culpability, so it's not part of the discussion.

Now, if you're wrongfully killed, then your killer is guilty of anything from manslaughter to murder, and will have to pay a severe penalty (if caught and convicted.) I know it won't bring you back, but one does what one can.

Now, if life were a privilege and not a right, then we could murder each other willy-nilly without recourse.

As for liberty, if I were to hold you in my basement against your will, I could (and probably would) be arrested for unlawful imprisonment and would probably also have the bejeezus sued out of me for it on top of any jail time I'd have to serve. In order to be deprived of my liberty, a specific procedure has to be followed.

"Happiness" is a euphamism for "property" (at least as understood by the Declaration of Independence.) Even there, that which is mine cannot be taken from me without cause (usually involving financial restitution.)

Rico · « **Reply #17 on:** June 29, 2004, 03:49:16 PM »

Law, you know a lot more about the legal stuff, than I do. I know about my side of it, though. I have seen NOTHING that says the evidence can't be shown to the accused. Only the source of that evidence. It seems to be that it is not being able to see those sources is what's making them so mad. Of course, I don't read the stuff you do, so I'm sure I'm missing something. I just find it very difficult to take some one's word on that without seeing it for myself.

People tend to forget that these agencies and offices that handle this stuff are made up of Americans that care just as much for your liberties as you do. In fact, a good number of the people I work with are here because they consitantly put the country before themselves. It's not like the agents gathering that information have no care in the world, they're just trying like hell to keep everyone safe. Ask a cop what he thinks about the legal system, and I think you'll hear about that samething from him.

The_FOO · « **Reply #18 on:** June 29, 2004, 05:26:42 PM »

Quote from: reimero

It appears you're confusing rights with guarantees. A right gives you legal standing and recourse. A guarantee is a promise that something will or will not happen. Rights can be abused, taken away, lost and trampled upon. The difference between a right and a privilege is that if you lose a privilege, it sucks to be you. If a right is violated, it's either because you did something to lose that right and had it stripped by an appropriate authority, or because someone else violated that right, in which case you (or your representatives) have the right to seek damages.*snip*

No, I understand that. What I'm saying is that rights are a legal fiction enforced by whatever government happen to be in power. The rights of American's are different than the rights of Canadian's are different then the rights of Iraqis.

The fact that you may or may not be able to seek damages is also controlled by that same government.

Take away that government and all your rights disappear.

Law · « **Reply #19 on:** June 29, 2004, 06:10:57 PM »

Quote from: Rico

People tend to forget that these agencies and offices that handle this stuff are made up of Americans that care just as much for your liberties as you do. In fact, a good number of the people I work with are here because they consitantly put the country before themselves. It's not like the agents gathering that information have no care in the world, they're just trying like hell to keep everyone safe. Ask a cop what he thinks about the legal system, and I think you'll hear about that samething from him.

I never forget that. What I am acutely aware of these days is a number of agents of the US government, and some of them very highly placed, have decided that the will defend their respective interests regardless of the cost. Noble, but dangerous when individual lierties are trampled on.

I have no doubt that that these individuals think they are doing what is best and that any damage caused by their actions can be corrected later after their perceived threat has been eliminated. I have a problem with any course of action that results in damage to people, that could have been prevented.

I don't blame the individuals doing their jobs, god knows I do things in my job that I don't like. I have a problem with the people trying to satisfy an agenda and doing in a way that ignores established law, laws they are sworn to uphold...

Rico · « **Reply #20 on:** June 30, 2004, 12:00:28 AM »

Very true, Law. I wasn't really implying you specifically, but more as a general statement. There ARE people out there who do not have the ability to take a step back and realize that their opponents are people, too.

There are people who get over-zealous in their work and tend to step on rights. It's not that often, though it may seem to be due to the fact that the media, and people in general, tend to blow things out of proportion. I, myself, can get very carried away with work. I don't think that I'd violate anyone's rights, but I have been known to neglect my health when something important comes up. I think the people you're refering to are like that in someways. I don't really realize what I'm doing. I just get so wrapped up and focused on the mission, that I forget/ignore everything else.

Demosthenes · « **Reply #21 on:** June 30, 2004, 08:13:35 AM »

Quote from: The_FOO

Quote from: reimero
It appears you're confusing rights with guarantees. A right gives you legal standing and recourse. A guarantee is a promise that something will or will not happen. Rights can be abused, taken away, lost and trampled upon. The difference between a right and a privilege is that if you lose a privilege, it sucks to be you. If a right is violated, it's either because you did something to lose that right and had it stripped by an appropriate authority, or because someone else violated that right, in which case you (or your representatives) have the right to seek damages.*snip*

No, I understand that. What I'm saying is that rights are a legal fiction enforced by whatever government happen to be in power. The rights of American's are different than the rights of Canadian's are different then the rights of Iraqis.

The fact that you may or may not be able to seek damages is also controlled by that same government.

Take away that government and all your rights disappear.

Incorrect. Take away government and protection of those rights disappears.

Rights themselves cannot be taken away. They are either acknowledged, and protected, or they are not.

Rights are not just a "legal construct"... they are moral truisms arrived at by reason just as surely as mathematics and physical laws.

The government can no more take away someone's rights than it can take away the law of gravity.

The Constitution is the guarantee, a guarantee that the government of the United States acknowledges individual rights and its role to protect them.

The rights are there whether or not the guarantee is.

reimero · « **Reply #22 on:** June 30, 2004, 08:15:44 AM »

Well said, Demosthenes!

Demosthenes · « **Reply #23 on:** June 30, 2004, 08:50:31 AM »

Thanks.

The thing is, that's why legitimate courts are going to be dealing Ashcroft, Dubya, and their crew a setback here on the subject of Guantanamo Bay prisoners and other "enemy combattants".

Those people have rights. The Constitution guarantees government protection and acknowledgement of those rights. Note that the Constitution doesn't say "US Citizens" or "Americans" when it talks about rights. It says "people".

And if those people are in the custody of the US government, regardless of whether that's on sovereign US soil or not, the US government is bound by the document that grants it its powers to acknowledge and protect those rights.

And on a completely aside note, when I was in the military, I was told that wherever I went, if I set foot on a US military base -- even one in another country -- I was setting foot on American soil.

The way I understand it, it works the same way as embassies. For purposes of determining legal matters and other issues, the little pieces of land on which embassies and military bases sit are for all intents and purposes little pieces of the United States.

That argument of "well, prisoners at Gitmo don't deserve recognition of their rights because they're not on US soil" is complete bullshit, from how I understand these things work, as if it mattered anyway.

Yes, Guantanamo Bay is in Cuba.

But it's an official United States military base. We even pay Castro MONEY for it. When you set foot on that base, you are setting foot on American soil.

Law · « **Reply #24 on:** June 30, 2004, 08:56:59 AM »

Quote from: Demosthenes

But it's an official United States military base. We even pay Castro MONEY for it. When you set foot on that base, you are setting foot on American soil.

Sadly, no. That would have ended the debate years ago. But, unlike any other military base in the world, the lease for Gitmo contains a clause that the territory is held under US control but shall not be considered, nor shall the United States assert that, the land is the sovereign territory of the United States.

There was a reason Guantanamo and not some place closer to Afghanistan (say Diego Garcia) was chosen to held these prisoners.

As for the extension of rights, you would think that would be true, but 200 years of senior American jurisprudence, and especially a specific set of cases heard after WWII, assert that only American citizens or those residing or held in the sovereign borders of the United States shall be granted access to the legal system of the United States to address their grievances therein.

Crap. Two years after I wrote this damn article and I can still quote things from memory.

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Author Topic: Ignoring the rights of the accused does not make us safer (Read 8772 times)

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