Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Friday, June 14, 2002
 
On the Serious Side

To describe this as disturbing would be an understatement:

The United States will not bring American terrorist suspect Jose Padilla before a military tribunal, the Justice Department told lawmakers Thursday, according to congressional and Bush administration officials.

The Justice Department, making its case in a closed meeting of the Senate Judiciary Committee, said the United States can hold Padilla until President Bush decides the war against terrorism is over.

"They say it's not punitive, it's just purely prevention to stop him from attacking us," said one congressional official, speaking on the condition of anonymity. "He's going to stay in the can until we're through with al-Qaida."

Government officials had said there were no plans to put Padilla before a tribunal, but officials told the Judiciary Committee that the decision is now final.

It appears to now be the position of the US government that an American citizen can be held indefinitely, presumably for life, without being formally charged with a crime.

The claim that it is not punitive is especially strange, bordering on Orwellian. If being locked up potentially for life isn't punishment, exactly what is?

We will win the current war. There is really not the slightest doubt of that. The home team has a record of 3 - 0 in these World War situations, and our previous opponents were all, in most ways, tougher than the batch of medieval fanatics we're up against today.

The only thing that even makes this war complicated is that some small percentage of the Muslims in the US, both among immigrants and among US citizens, are fifth columnists working for the enemy to kill us.

How we handle that situation will determine whether we end this war as we began it, a free people.

There is a real need to conduct intelligence, both human and technological, among Muslim extremists, and we should do so in the US and overseas. When this intelligence does identify terrorists or would-be terrorists, it will at times be necessary to incarcerate them without allowing them to see evidence which could endanger human sources or electronic methods.

It seems that to deal with this problem something along the following lines is needed(IANAL):


  • When there is evidence that must be concealed from a suspected terrorist, they can be assigned to a tribunal rather than a civilian court. This assignment would be approved by a judge, not made unilaterally by the executive branch.
  • Persons brought before a tribunal will be entitled to an attorney, but not one of their own choosing. The attorney will be chosen from a list of attorneys cleared to access confidential evidence in terrorism cases.
  • These attorneys would probably be mostly or entirely government employees. They should have guarantees of independence, so they would not face penalties for aggressive representation of their clients. They would of course face criminal charges should they leak any confidential information.
  • Defendants would also be permitted to hire attorneys of their own choice, for general counsel and to call or cross-examine any non-secret witnesses.
  • Defendants wouldn't be allowed to examine the confidential evidence, although their approved attorneys would. In some cases, the defendant wouldn't even know the specifics of the charge. This is really straining the Sixth Amendment to the breaking point, but it seems almost impossible to get around this and still keep the evidence secret. The only alternative I can see is the Ashcroft plan to just lock people up without any judicial proceeding, which is worse.

I'll be interested to see in the next few weeks how this plays out among the pro-Bush folks in the blogosphere, many of them self-labelled libertarians. My guess is that most of them will see the problems in the government's handling of the Padilla case. Eugene Volokh - who, unlike me, actually is a lawyer and law professor and knows what he is talking about - has addressed some of the issues here and in other posts.



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