Posted on 12/13/2001 1:43:34 PM PST by missileboy
Secret trials endanger security
By Harry Browne
© 2001 WorldNetDaily.com
Why are the Bill of Rights, open trials, the rule of law and the traditional American rules of evidence important?
Two reasons:
1.If an innocent person is convicted and punished, it's an injustice to that person – and the founding fathers were determined that Americans wouldn't suffer the injustices that had oppressed so many innocent people in the Old World.
2.If an innocent person is convicted, the real criminal will be free to commit more crimes.
So it misses the point to say the civil liberties of individuals must be balanced against the safety of the community. If individual civil liberties aren't protected, the safety of the community is endangered by putting the wrong people in prison, i.e., by allowing the guilty to continue to function.
It's vital that only the guilty be convicted – whether the accused is suspected of a petty theft, a terrorist act or mass murder.
It's vital that only the guilty be convicted – whether the accused is an American citizen, a green-card resident or an outright foreigner.
Whatever the crime, whoever the accused, your safety requires that only the guilty be convicted.
Each rule is important
The Bill of Rights and the rules of evidence were developed to assure that only the truly guilty are convicted.
The right to a trial by jury: A defendant must be tried by "a jury of his peers" so that he isn't judged by people who can gain personally by convicting him.
The right to a public trial: If the prosecutors, judges and juries can't be seen and judged by the public, they can short-circuit a fair trial.
The right to counsel: A defendant isn't likely to have the talent and skills necessary to call the jury's attention to logical gaps in the prosecution's case. So the defendant must have a skilled lawyer. To assure that the right person was convicted, appellate courts have ordered retrials when the accused didn't have competent counsel.
The right to confront one's accusers: No evidence is valid if the person offering it can't be cross-examined by the defense. Hearsay evidence is worthless because you can't be sure what someone meant by what he said if you can't question him.
The right to remain silent: If you're nervous or inarticulate, a skilled policeman or prosecutor could cause you to say something that's incriminating but not literally true.
The right to private consultation with an attorney: To mount a competent defense, a defendant must be able to speak freely to his attorney – confident that his words won't be taken out of context or otherwise misinterpreted.
These are just some of the rules that are vital to assure that the innocent aren't convicted while the truly guilty go free.
If these rules are discarded – as the Bush administration proposes to do with secret military trials – we have no guarantee that the people convicted, and possibly executed, will be the true villains. And if the wrong people are convicted, the guilty ones can continue terrorizing Americans.
And those who say "terrorists have forfeited their rights" are forgetting the most important point: Without a fair, open trial, you can't be sure the accused person really is a terrorist. Allowing government employees to act as investigators, prosecutors, judges and juries isn't the same as conducting a fair, open trial.
Why the Bill of Rights is ignored
The Bill of Rights, the rule of law and the rules of evidence are there to protect both individuals and society. If the individual isn't safe from false prosecution, society isn't safe from criminals.
Saying the terrorist danger justifies tearing up the Bill of Rights makes as much sense as saying a threat of invasion justifies disbanding the military.
It's a shame that schools don't show children why the Bill of Rights is so important.
But then, why would government want to teach children that it's important to protect individuals from government?
Back before Nov 4 2000 he was interviewed by O'Reilly. He ended up actually laughing at Browne, who indeed was comically ludicrous on the "legalize all drugs" issue. Regardless of the Libertarian stance on drugs, Browne had zero ability to finesse the issue with any semblance of common sense.
Which confirmed my direct first hand experience from the 1980's that the LP leadership is packed with wingnuts.
Agreed, but back to the original topic, the current war against terror, Harry's 'guiding principle' of virtual non-interference in foreign affairs or refusal to enact defensive measures here at home (which is exactly what he proposed) amounts to a refusal to defend ourselves and would get alot of Americans killed, without a doubt. Wouldn't you agree?
1. Safety of innocents. In a criminal trial diclosure of evidence rarely endangers anyone unwilling to take the risk for the sake of obtaining conviction. In a war disclosure of evidence aids the enemy who can use the knowledge to carry out future attacks.
2. Status of a combatant. Surely Mr. Browne wouldn't suggest assembling a jury each time an enemy soldier peeks out of the trenches, before that soldier is shot. Now we have a peculiar war when the enemy soldiers don't wear uniforms and don't sit in trenches. At what point does Mr. Browne propose a combatant should be treated as a civilian criminal?
Shooting combatants in an overt war without trial is relevant because this time we have a continuum in degree of "combatance", from a soldier in Tora Bora to a saboteur to a mere sympathizer. If the line is not drawn at the US citizenship, then Mr. Browne should explain where he thinks the line is.
So who do we arrest, who do we shoot on sight, and how do we tell them?
That's because O'Reilly's 'no spin zone' starting spinning the issue. He started the fear-mongering, screaming that we'd have addicts and surges of domestic violence. Although his arguments have near-zero credibility (ending prohibition ended the tommy-gun killings associated with bootlegging, and prior to 1934 Americans could buy all of these drugs at a pharmacy over-the counter and we had no drug problem) we're approaching the threshhold where no one living is old enough to remember the facts to refute the creator of the 'no spin zone'.
When everyone is scared into buying into the lie because they don't know any better, the issue can no longer be finessed, nor can it be dealt with in terms of common sense. Most of the voting public ditched that standard of reasoning long ago - truth is now determined by consensus, not objective fact.
Can't we just all get along and come to some sort of consensus on these issues...and to the poll-ocracy for which it stands, one nation, under facillitation, with diversity and permissiveness for all. Amen!
Now, missileboy, we're not going to solve all the problems brought up here today. So in 3 minutes could you please just list the 3 most important issues to you, and I'll write them down on the whiteboard with all the other freepers' ideas on these matters, and we'll classify them under similar categories.
Coming soon to a public/team/PTA meeting near you...
In not rising up and striking down the unConstitutional laws that leave travelers disarmed and defenseless, individual citizens in the majority have in fact refused to defend themselves, from their own government, as well as external predators. The results were that a lot of Americans were killed. That's been demonstrated.
We can conjecture about the future effect of Browne's policies, but the results of the current policies have been demonstrated. No doubt there are risks to Browne's libertarian policies. Historically secret trials have been the hallmark of totalitarian regimes. I know the current proposals come with limits, but what's wrong with pointing out the shortcomings and risks of incremental expansion of prosecutorial power?
Risks? Look, you won't catch me defending the socialists among us who've been chipping away at the constitution for the past 200 years, but Brown's proposals re: the war on terror amount to little more than national suicide.
We arrest those against whom we hold primafacie evidence that they have committed a crime in a territory of U.S. jurisdiction.
We shoot on sight enemy soldiers who are engaged in hostile military action, not while they are trying to surrender nor after they have.
When we capture adversary combatants in a wartime situation they become prisoners of war and should be treated as such.
How can there be any confusion about these things?
Is it that since we are conducting what we choose to call war, but refuse to Constitutionally declare it, not having declared it gives us additional latitude in dealing with adversary combatants?
I would think it obvious that the question Browne is addressing here is what is necessary to determine that an individual charged with crime is actually guilty of that crime, and the necessity and responsibility for U.S. citizens to exercise oversight over the process to ensure that it is conducted in accordance with law and justice.
Members of Al Qaeda and/or Taliban who are fighting in Afghanistan are not by virtue of that fighting guilty of a crime. If it is credibly believed that specific individuals among them have committed crimes in territories of U.S. jurisdiction, they should be tried of those crimes in accordance with the U.S.Constitution which states pretty clearly what the government may and may not do in criminal court.
It seems to me that ignoring the rule of law, due process, and Constitutionally delegated procedures (eg. Congress declaring war) is really the national suicide: totalitarianism on the installment plan, turbo-charged by exigency and saturation media coverage. If the exact same damage had been exacted by an earthquake, what do you suppose the effect on our economy and national psyche would be? Much of the tragedy in this is our over-reaction or inappropriate reaction (confiscating nail files? Get real!)
I'm sorry, but I don't think we really are at war. If we were there'd be a draft, rationing, massive industrial build up of war-goods capacity, etc.
These bastards don't have any war-fighting ability even with all their oil money and pass-around-the-turban donations. They've got no munitions factories, no carrier groups, no strategic bomber wings, nothing but the balls to attack unarmed civilians. That problem could be solved overnight by removing unConstitutional laws and the American people, now awake to the lies of their erstwhile protectors, would respond realistically and immediately.
We've become a nation of pussies. Real war looks a whole lot different than this. We could nip this crap in the bud by denying the Islamic/Arab world access to our markets and doing the same to anyone else who sells them weapons or gives them support.
In framing this debate in terms of some Orwellian-phrased "war on terror" it's easy to see weaknesses in Browne's position because his position doesn't assume this war is a real war, and he's looking longer term. In terms of tactics in the short term, your position is exemplary. The very fact that some of these policies have sunset clauses speaks to our discomfort with them and the politicians recognize a need to allay our fears. But in the real world of inertia and incremental politics, there's nothing as permanent as a temporary solution. A perfect example is the income tax withholding, a "temporary measure" enacted about 60 years ago to help even out the cash flow for WWII expenditures. Once enacted, new powers seldom sunset as planned.
In terms of a long term strategy for maintaining what's left of restraining arbitrary government, Browne's concerns are relevent. Only time will tell if his warning is alarmist or prophetic.
Where in the U.S. Constitution does it state what the government may or may not do to it's noncitizens?
But you don't address the central issue either. Do you, or don't you make a distinction between prisoners of war and criminals with prima facie evidence? If you do, your position is closer to Ashcroft's than to Browne's, and I agree with you.
To cut to the chase, this is what I think: The regular civil court should be used to determine combatant status whenever it is not plainly obvious, -- that is, clandestine involvement in a hostile militarized terrorist organization. That should be easy to do with the rules of evidence as they are in criminal procedure. For example, the criminal court would have only to prove that Mr. Achmed Al Rashid received communications from known terrorists. The civil criminal court doesn't have to prove any concrete crime that Mr. Rashid was involved in, and in most cases his crime would be in the planning stage anyway since we assume he had been caught. Once that is established, Mr. Rashid becomes a prisoner of war. The Geneva Convention applies to him and the Bill of Rights doesn't. At this point, a military tribunal may be used to determine if the prisoner of war is guilty of actual crimes against civilians. If he is, he is accordingly punished. If he isn't he is merely detained till peacetime.
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