"'Serious mistake' if car bombing suspect was Mirandized"

[unixronin]

So says John McCain of the attempted Times Square carbomber.  Because then we'd have to prosecute him through the criminal justice system and he'll have, like, rights and stuff, instead of treating him as an "enemy combatant".  Because we've just gotten SO MUCH vitally important intelligence out of all the "detainees" we've been storing indefinitely at Guantanamo.

Comments

[milktree.livejournal.com]

I used to really like McCain, but recently it seems like he's off his meds.

[unixronin.livejournal.com]

I used to have a fair bit of respect for him, a long time ago. Then he kinda lost his way, to the point that when the GOP ran him against Obama I pretty much took it as a sign that they figured the election was already lost whoever they ran, so they could let him have his turn and not lose anything.

[perspicuity.livejournal.com]

well, ya know, they'd just disappear the person in question, and it wouldn't really matter about this Miranda chick.

#

[jhetley.livejournal.com]

Grump.

You know, McCain ought to know a bit about being a mistreated POW . . .

[unixronin.livejournal.com]

You'd think so, wouldn't you?

[jordan179.livejournal.com]

Differences:

(1) McCain really was fighting in uniform for the military of a recognized Power which obeyed the Laws of War, when he was captured. By contrast, the car-bomber was fighting out of uniform for no military of any recognized Power, and he was attempting to commit a war crime when captured.

(2) McCain was treated far worse than we've treated the Guantanamo detainees.

Were those the points you were trying to make, or were you genuinely unaware of these differences?

You dishonor the memory of the Vietnam veterans by comparing them to the Taliban.

[unixronin.livejournal.com]

Your points are taken. That said, Shahzad is a US citizen who committed a crime on US territory, and should be tried under US law, not buried in a "detention" system of questionable legality that might get around to actually trying him for something five or ten years from now. The entire initial statement from McCain is absurd; there is no way in which reading Shahzad his Miranda rights can weaken the ability to prosecute him or to obtain any useful intelligence from him. (Not that I consider the latter at all probable. He's too small a fish, for one thing.)

[jmkelly.livejournal.com]

That's just the tea talking.

[mrmeval.livejournal.com]

"Give"? That stupid evil cretin. No one gives me or any citizen any right.

[house-pundit.livejournal.com]

The solution, of course, is to pass legislation giving enemy combatants enumerated, limited rights. They do not have the rights of citizens, legal visitors, or illegal immigrants. They do not have the rights specified by law and treaty for enemy POWs.

First, if someone is detained, then make the government present a case, within a specified time frame, where a federal judge first determines whether an act of combat, either actual or conspiracy, occurred. Base this determination on probable cause.

Since this hearing is just to determine if there's probable cause that there was a combat event, not whether or not the detainee is guilty of it, he should have no right to be there.

Make it within 48 hours so you have that initial determination right away.

If the judge rules that an event (probably) occurred that is not combat but is a crime, then let the government Mirandize him at that time and dump him into the civil justice system.

Then give a detainee, within a certain time frame, a hearing before a military tribunal of sufficiently cleared persons whose sole job is to determine whether or not there's probable cause that the detainee committed the aforementioned act of combat. Give the detainee a military representative who has none of the access to evidence a defense lawyer has--the rep's sole job is to listen to the detainee, who won't be present at the tribunal hearing, and present his side of the story. Again, we're just determining probable cause.

From there, give the detainee, within a certain time frame, a trial before a tribunal in which the detainee has the right to speak in his own behalf but not otherwise be present at proceedings, and the detainee has a representative. The representative is a sufficiently cleared person who is empowered to see the government's evidence but is prohibited from sharing that evidence or anything about that evidence with the detainee.

[house-pundit.livejournal.com]

It would be the representative's job, in an adversarial process, to poke holes in the government's case that the detainee committed an act of combat.

If the detainee is, by this process, found to be an actual enemy combatant, you let him be held, with periodic reviews of his status by something like a parole board that determines whether he still has intelligence value or is a threat of returning to combat if released.

[house-pundit.livejournal.com]

I don't think we should use a reasonable doubt standard for these guys, either. Classify combat event types by seriousness and dangerousness.

If it's more serious, go on preponderance of the evidence (51% standard). Or if there's reason to believe the EC has information about something more serious. We've got to protect against a ticking nuke scenario.

If it's less serious, go on clear and convincing proof (75% standard).

Do allow interrogation, with standard methods, from the time the potential EC is first picked up. Which can be used against him if he stays in the military side of the system.

[house-pundit.livejournal.com]

The point here is that the big risk in a civilian trial is the security risk of the government having to release evidence to the defendant's lawyers and thus to the defendant, and the defendant being able to face his accuser in a court of law and hear what the government has as evidence against him.

That crap really is vitally dangerous to national security. But somebody is deciding, now, if someone picked up is an enemy combatant or not. Or if they can be let go. This just formalizes that process in a way that dumps people who clearly should be in the civilian justice system back into it.

[unixronin.livejournal.com]

That actually sounds like it could work, if it was actually followed and 48 hours didn't gradually turn into six months or five years, and dependent upon the definition of what's considered an act of combat. I would start by saying that any act of terror conducted or attempted against civilians is not an act of combat, it is actual or attempted criminal mass murder and should be tried as such.

[house-pundit.livejournal.com]

You can't try it as such without throwing national security out the window.

You might as well walk Bin Laden into Langley and say, "Here, dude. Look at whatever you want. Can we get you some coffee with that?"

This is because of the protections of facing his accusers in court and having access to all the evidence against him.

[house-pundit.livejournal.com]

The mass murder thing is taken care of in the enemy combatant system I proposed by first, ensuring you hold the guy without giving him access to squat and second, when he comes up for review, he just gets kept.

You make a good point. The tribunal that decides if he is a combatant or not and did something serious or not should be able to specify life detention without release.

Personally, I'd let them shoot him, but not on 51% evidence and it's just not worth it to give him access to any information at all.

[unixronin.livejournal.com]

We already have existing law that says suspects on trial on terrorism charges may not be entitled to hear evidence against them if disclosing it in their presence would endanger national security. I can tolerate excluding them from the courtroom while such evidence is presented, but IMHO the judge needs to see it.

On the other hand, if you can't convict someone on terrorism charges WITHOUT revealing evidence that jeopardizes national security, you didn't have that much of a case against him in the first place.

[house-pundit.livejournal.com]

Combat is not crime. Crime is not combat.