I was reading in the New York Times today about President Obama’s plan to allow terrorists to be detained without a trial. Setting aside the fact that this is simply more of the same stuff that we had under Bush, I simply don’t understand it. What could possibly be the downside of allowing people to have a trial? In a trial the defendant is either found guilty and sentenced to prison or he’s found innocent and let go. What are we afraid of? How on Earth could a trial make us less safe?
Allowing people the right to a trial doesn’t mean we are going to let them roam free. It’s not like accused murderers are just walking around town while they wait for their trial date; we actually keep them locked up. Couldn’t we do the same thing for terrorists? Sure, hold them in jail until their trial, but be sure to GIVE them a trial. And, I believe the right is to a speedy trial, not a trial at some vague date 10 years in the future.
The New York Times article also suggested that we already make exceptions to the right to a trial for sexual predators and insane people. Again, why? Yes, sexual predators are evil, and yes, insane people are, well, insane, but why shouldn’t we give them a trial?
Anyway, perhaps someone can enlighten me: what do we gain from detaining people indefinitely without a trial?
Tags: courts, detain, Habeas Corpus, justice, law, Obama, rights, terrorists, trial
Soldiers fighting in a war are usually not criminally liable for their actions against the other side. If they’re captured by their enemies, they can’t really be tried, because they haven’t committed any crimes. At the same time, they can’t just be released. That is why international law recognizes the “prisoner of war” status.
Indefinite detention without trial of POWs is recognized by the Geneva Conventions, until the war is over and under certain strict conditions for treatment and care.
What we should be asking is this: is holding these individuals as prisoners of war the proper response, and is it applicable? I don’t think so. Generally the most effective response to terrorism has always been law enforcement and intelligence action, not military.
@Rock:
I think you missed the point. Sure, if an “enemy combatant” was capture during fighting they fall into a pseudo-POW category. Or if they were a terrorist plotting an attack then they can be guilty of, effectively, conspiracy to commit murder or other variants. In both cases, there is sufficient evidence to hold them and the reason they are being held can be presented at some form of review, aka a “trial”.
Holding a POW indefinitely is fine, as long as there is sufficient evidence they are legitimately a POW. The problem with no trial of any sort is that there is no demonstration of any wrongdoing. Many of the “enemy combatants” at various U.S. gulags (Gitmo, Abu Graib, etc.) were simply “ratted out” by paid informants who earn money by accusing people.
Nobody is questioning the right to hold dangerous people, but without some form of trial, even to declare that they were captured during fighting at such-and-such a battle, then how can anyone know that they are actually dangerous people. What’s to stop the government or military from indefinitely imprisoning people who are, say, merely critics? Or even the wrong person?
Less deaths.
Trial exposes too much of our wartime methods and secrets. They don’t have a RIGHT to a trial, and I don’t want to pay for one either.
I think the fear is that if we take them to trial and fail to win the case, then we have to let them go whether they are a danger or not.
The thing that is amazing to me is that nobody seems to be considering the downside of these kinds of policies. If some country grabbed my spouse or relative and held them without trail or hope of release, I would be furious, and if they did this without even charging them with crime I would be far more inclined to believe that country was evil, and I would be far more likely to help the enemies of that country.
It is hard to imagine a policy less likely to win hearts and minds. It is also hard to imagine that we are moving into an era when we will have less rights to a fair trial than when the Magna Carta was signed nearly 800 years ago!
You are absolutely right. These people are not POW’s, they are war criminals generally caught on or near the field of battle without uniforms. The Geneva Conventions that the USA and other countries have signed provide that these terrorists may be shot or otherwise executed out of hand, preferably but not necessarily quickly and humanely. Legal proofs necessary in the US do not apply, unless some moron is stupid enough to bring them in country and provide them with lawyers.
Most of these terrorists were executed in Afghanistan by the warlords; mostly a select few foreigners were actually transported to Guantanamo. Some have been released, records show that about one out of seven of those released have returned to terrorism and murder. Several have died as suicide bombers, killing more innocent people with their own deaths. Please feel free to use due diligence and check my figures.
I am sure, however, in the interest of simple humanity, that perhaps you or some of your readers would be happy to accept them into your homes with your families, there to demonstrate to them the concepts of love, forgiveness, and Christian charity.
Or we could just do the legal thing and shoot them.
@badfrog
Go read the geneva convention.
Depriving combatants, prisoners of war, refugees, or medical or religious personnel of a fair trial is considered a grave breach of the convention. (Protocol I, Art. 85, Sec. 4e) as is any unlawful act which causes death or seriously endangers the health of a prisoner of war. (Convention III, Art. 13)
You can’t consider someone a war criminal without evidence, and if there’s evidence, as this article says, lock them up and run them through a trial. Badass vigilante justice like you’re suggesting only fosters the next generation of terrorists.
The issue here is that they do not have a reason to be put in jail. But because of abuses they have gone through they would be a danger if they were let go. It is dangerous to let them go and Obama has a real problem here. There is no easy solution for him but these people must stay locked up and they do not have evidence against them to keep them in jail.
@CaptainObvious
Less deaths? How? Lock them up, and give them a trial versus just locking them up? No, they probably wouldn’t give you a trial, but if you have any hope of converting people to your cause, you must adhere to a higher standard, even if it costs you.
@J Thomas
“They don’t have a RIGHT to a trial, and I don’t want to pay for one either.”
They do have a right to a trial, and by entering into a war as a member of the geneva convention you are bound to provide it.
If you try terrorists in a civilian court, you would have provide discovery explaining how you’ve obtained information against them. This could involve on going information gathering (such as using cellphones to spy on the taliban or what not) that would be made public and that could be passed on to the different terror organizations.
If they try them in a military court, then there could actually be less justice than what a civilian would expect. They don’t have to do discovery, etc.
@Birch
That’s a real problem, and it’s one that Obama has addressed (a little bit) in his comments on devising a specialized judicial system for a handful of Gitmo cases. As I understand it, he’s putting almost all of the detainees through a regular, public trial system. For those whose cases have (or are claimed to have) special secrecy circumstances, he’s trying to create a modified military court that offers many of the rights in a civilian court. right to representation, right to know the charges against you, etc.
In response to the original post, there ARE times during war when you may need to detain people without trial, and there are precedents and laws that make it possible for Congress to suspend Habeus Corpus accordingly (like we did in the civil war). This becomes a problem when we wage war against a tactic, without a congressional declaration or a concrete endpoint. And that’s basically what’s going on here… The Bush Administration sent us to war against an idea, and Congress abdicated it’s right to formally declare and set and endpoint. So now the government has an excuse to use all these expanded war powers, but without an endpoint they may as well be just removing our rights permanently.
My solution? Let’s discuss the “war on terror,” and reframe it as a policy rather than a “war.” The “War on Poverty” doesn’t allow us to abridge rights, and we should treat the “War on Terrorism” the same way.
Haha Badfrog, I guess you don’t understand the point of due diligence, you have to check (and cite!) your own damn figures.
Conspiracy to commit murder is a crime for which people can be legitimately imprisoned. If there is evidence that people are guilty of this crime then lets see the evidence and take them to trial. In the absence of due process the unavoidable conclusion is that these “terrorists” are prisoners as a result of political expediency. Imprisoning people for political reasons is morally indefensible and the kind of action you might have expected from the soviet union or some third world republic, not a supposedly moral nation ruled by law.
You said:
Wrong.
There is no evidence that many of the people held at Guantanamo Bay are terrorists, or ever committed a violent act. A number of the people held at Guantanamo Bay were innocent bystanders fraudlently sold to the U.S. army by corrupt Afghan warlords looking for a quick payoff by lying to get reward money.
Other people held at Guantanamo Bay were innocent people like the cab driver Dilawar, who was simply driving at the wrong place in the wrong time. Even his interrogators came to believe Dilawar was innocent.
But Dilawar and Maher Arar are not the only innocent bystanders who were swept up, hurled into pirosn without charges or trial, and locked away for years.
Many detainees locked up in Guantanamo Bay were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday.
“There are still innocent people there,” Republican Lawrence B. Wilkerson, former chief of staff to then-secretary of state Colin Powell, told the Associated Press. “Some have been there six or seven years.”
Wilkerson, who first made the assertions in an internet posting on Tuesday, told the AP he learned from briefings and by communicating with military commanders that the U.S. soon realized many detainees held at the U.S. military prison in Guantanamo Bay, Cuba, were innocent but nevertheless held them in hopes they could provide information for a “mosaic” of intelligence.
Most Guantanamo detainees are innocent: Ex-Bush official
Ever since the Magna Carta in 1215, the fundamental basis of Western law has been recognized to be the right of everyone accused of a crime to face his accuser, he charged with a crime when arrested, and be tried by a jury of hi/r peers.
But the requirement that a person accused of a crime must be charged and face his accuser and be put on trial goes back much farther than merely 800 years, it is the very foundation and cornerstone of Western civilization. At the end of the Orestes Trilogy, Aeschylus describes how the endless cycle of revenge killings that began when Clytemnestra murdered Agamemnon finally ended, when Apollo created the jury trial to decide guilt or innocence.
The Supreme Court decision Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, contains a thorough history of the ancient principle that an accused be charged when arrested, and be allowed a trial:
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:
“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day.” Code, L. IV, T. XX, 1, 1. 25.
The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent.” Dig. L. XLVIII, Tit. 19, 1. 5.
(..)
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140.
Fortescue says: “Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally.” De Laudibus Legum Angliae, Amos’ translation, Cambridge, 1825.
Lord Hale (1678) says: “In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.” 2 Hale P.C. 290. He further observes: “And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris.” 1 Hale P.C. 24.
Blackstone (1753-1765) maintains that “the law holds that it is better that ten guilty persons escape than that one innocent suffer.” 2 Bl. Com. c. 27, margin page 358, ad finem.
To abandon this most ancient of all fundamental rights, the right of the accused to be charged and stand trial, is worse than barbarism: it is savagery, it is lawlessness, it is the most despicable kind of tyranny known to man.
For 200 years America has successfully dealt with every crime, every heinous act, every violent attack by using Western common law: whenever someone gets arrested, we charge that person with a crime, hold a trial, present evidence, and let a jury decide.
No crime has ever been so hideous that it required America to abandon the rule of law, not for 200 years: rape, murder, torture, secession, rebellion, treason, presidential assassination, serial killers, Charles Manson, Lee Harvey Oswald… In every single case, America successfully dealt with criminals by staying within the rule of law laid down for thousands of years, all the way back to Athens and Rome.
Now all of a sudden, because 3 jets were hijacked on 9/11, we’re going to abandon the rule of law that has formed the basis of Western civilization for 2000 years, and kidnap people and hold them in prison without charges and without access to a lawyer and without trial, forever, on the mere unsubstantiated accusation that they did something bad.
Why?
America faced a million hardened Nazi troops in WW II, we faced the German Kriegsmarine and the Luftwaffe and the Imperial Japanese Navy and hundreds of U-boats and thousands of dive bombers and Messerschmidt fighters and the Imperial Japanese Army, and we didn’t find it necessary to kidnap German soldiers and hold them in prison without charges or a trial. Why now?
During the Cold War, America faced 3000 nuclear warheads and 60 Soviet tank divisions and three million soldiers in the Russian Red Army, and we didn’t find it necessary to kidnap people and hold them without charges in a secret prison without lawyers and without a trial. Why now?
Think about it. In WW II we faced the entire Third Reich and the Empire of Japan, millions of men bent on America’s destruction, fleets of thousands of planes, hundreds of enemy ships, hundreds of U-boats and Japanese submarines, yet America never abandoned the rule of law.
During the Cold War we were threatened by thousands of nuclear weapons and millions of Red Army soldiers and thousands of tanks and bombers and dozens of Soviet nuclear subs. Yet we still didn’t throw away the rule of law.
But now, faced with 19 guys armed with box cutters, America is going to abandon the fundamental basis of Western law for the last 800 years and start kidnapping suspects and throw ‘em in prison without charges, without trial, with a lawyer?
This is insane.
I can’t believe anyone is even debating this.
This is lawless. It’s barbarism.
The instant you throw away due process, you have headed down a very dark road.
Wife: Arrest him!
More: For what?
Wife: He’s dangerous!
Roper: For all we know he’s a spy!
Daughter: Father, that man’s bad!
More: There’s no law against that!
Roper: There is, God’s law!
More: Then let God arrest him!
Wife: While you talk he’s gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
[A Man For All Seasons, Robert Bolt, 1960]
If anyone truly thinks that abandoning due process and throwing out due process and the right to trial going all the way back to the Athens and Rome is a good idea, I tell you what:
Emigrate to North Korea.
They don’t have due process there. Someone accuses of something, regardless whether you actually did it, you get kidnapped and thrown into prison without charges and without trial. And you may rot there. You may die there.
You really love the idea of abandoning due process and the right of trial by jury?
Your paradise awaits in Pyongyang. Get moving.
they passed this law to detain lawful citizens “they” deem to be a threat to the status-quo.
If you are not a sheeple american eating the shit they feed you, they will detain you on the grounds that “you may cause trouble in the future”, so its better that they just arrest you now…
Its Orwellian reality at its finest. 1984, Brave New World, Fahrenheit 451 (the dumbing down of society), Fascism, and Insane Corporatism at its finest.
When will we as Americans wake up to the hell our ‘leaders’ have created for us!?
it is not about terrorists. it’s about would be terrorists somewhen in the future. i guess you missed that point.
basicly everyone can be locked down because they might commit a crime in the future.
i am not from the usa, but i suggest you leave your country sooner than later. canada looks cool =)
wish you all good luck!
[...] I Don’t Understand Why It’s EVER Necessary To Detain People Without A Trial [...]
I understand the necessity of holding people UNTIL their trial, but I don’t understand holding people WITHOUT any trial at all.
I’m glad there are some people on my side, but I’m surprised by how may responses go something along the lines of, “Yeah, we shouldn’t detain them we should just shoot them,” or, “I don’t want to pay for a trial, so screw them,” or, “We can’t give them a trial because if they are found innocent we would have to let them go.” No shit. That’s kind of the point, right?
My personal favorite is, and I quote, “The issue here is that they do not have a reason to be put in jail. But because of abuses they have gone through they would be a danger if they were let go.” You’ve got to be kidding me. We put innocent people in jail and we can’t release them because they have a grudge? Talk about a Catch-22.
I’m with Michaelc on this one, what with his famous “but what if it were me” argument. The thing is, there needs to be some sort of legal recourse for people who are mistakenly imprisoned. That’s what trials are for; to give people a fair chance to defend themselves and to confront their accusers. Just imagine if you were in the wrong place at the wrong time (or your wife, or your daughter) and you were thrown in jail for no reason and with no hope of ever getting out. Wouldn’t you be pissed? Can you imagine being in jail for YEARS having done nothing wrong simply because the government has “the power” and nobody felt like standing up for your rights?
I’m also glad mcl took the time to go through all the history, although World War II is a bad example because we did lock up all the Japanese-Americans. However, we should learn from that lesson and not do it again.
I am reminded of the police stopping someone to ask them questions. If you disrespect and ignore the cops they will get hostile, accuse you of not cooperating with law enforcement, etcetera. But simply by stopping you, they are technically arresting you… an arrest, by definition, is when law enforcement infringes on your right to self-determine, to go about your business. And yet unlawful arrests happen. As long as they dont “book you” it will never see trial and it gets brushed under the rug, forgotten as though it never happened – they dont even consider it an arrest. But failure to cooperate will surely get you arrested. Corruption.
Not to sound too much like a conspiracy theorist, but this is about power over the people, I think. Corruption. The government cannot strip us of our rights so obviously. They have to slowly and surely approach that level, blindside us. Some people tolerate it, but they are also lowering their standards. This mentality propagates from generation to generation. I thought moral deprecation was societies biggest problem. But our rights and freedoms are being eaten away at, too. Eventually, they will just say “youre a terrorist” for saying non-patriotic, controversial, or unorthodox views that could incite change… then they can arrest you without trial and no one will be the wiser… you cant defend yourself… you wont even be able to communicate to the media about your situation.