Supreme Court Will Hear Guantanamo Case

by hilzoy

From the Washington Post:

"The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement.

The action, announced without comment along with other end-of-term orders, is a setback for the Bush administration. It had argued that a new law strips courts of their jurisdiction to hear detainee cases.

In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.

The move is highly unusual.

The court did not indicate what changed the justices' minds about considering the issue. But last week, lawyers for the detainees filed a statement from a military lawyer in which he described the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts.

"This is a stunning victory for the detainees," said Eric M. Freedman, professor of constitutional law at Hofstra Law School, who has been advising the detainees. "It goes well beyond what we asked for, and clearly indicates the unease up there" at the Supreme Court."

The Supreme Court's order is here (pdf). The "statement from a military lawyer to which the article refers is here (pdf). I meant to write about that statement at the time, but anyone who is in any doubt about the total inadequacy of the CSRTs, the only procedure available to most Guantanamo detainees, should read it. The defense's argument that the Supreme Court should hear this case is here (pdf); it's also worth reading.

These detainees are in their sixth year at Guantanamo. They are still trying to get habeas rights: the right to compel the government to show that it has some good reason for detaining them. It's wonderful that the Supreme Court will hear the case, but it should never have taken so long.

Comments

[Katherine]

wow!!!

[OCSteve]

Good.

[john miller]

Of course, I suppose it is possible that their decision will vindicate the administration, not that I am a cynic or anything.

[Garth]

i hope and, almost, pray that this means Kennedy is ready to step up to the plate and do the right thing.

i wonder what willowisp the four asses will follow?

any idea on the time frame for a decision?

[CaseyL]

After the last few decisions, I'm actually quite worried about this one.

Bear in mind that Alito and Roberts were selected by Bush-Cheney specifically for their support of the Unitary Executive theory: that has to be 2 automatic votes for the Administration in this case. Thomas, probably, as well.

Scalia - maybe not a vote for the Administration, as he's gone on record passionately defending habeas.

Kennedy... who knows what Kennedy will do?

[Katherine]

Scalia will vote for the administration. He passionately defends habeas for citizens; noncitizens in Guantanamo are a completely different case.

Based on Kennedy's concurrence in Rasul, I think he will find that the detainees have some rights. I think he's more likely to construe the MCA to require some due process than to find it to be an unconstitutional suspension of the writ; how much due process, I don't know, especially not before the D.C. Circuit decides anything.

But Kennedy is Kennedy--you never know.

[Ugh]

CaseL - I think Scalia's on record that Habeas doesn't apply at Gitmo (though Katherine and CharleyCarp would know better than I), which leaves Kennedy.

[Ugh]

that last cross-posted, obviously.

[Anderson]

Scalia supports habeas for citizens; he's unlikely to think that people in Gitmo have "any rights he is bound to respect."

What Kennedy does is what the Court will do.

[Anderson]

I see that by the time I "verified my comment" for the fifth time, it was old news.

[Model 62]

I don't know, especially not before the D.C. Circuit decides anything.

Saw a comment at SCOTUSBlog regarding this -- why would the DC Circuit do much of anything between now and October when the SCOTUS potentially resets the rules?

[Ugh]

As Anderson notes at his blog, according to SCOTUSBlog the Court granted a re-hearing, which requires five votes - likely meaning Kennedy went along with Stevens.

Why do I feel that this one is for the whole enchilada?

[Anderson]

It's called "hope," Ugh. They have medications to correct that.

I would like to think that Kennedy would be tired of this nibble-at-a-time approach, and would hold that enough is enough, the administration's had its tries, let's get these people before a district judge and go from there.

But that would be Anderson, not Kennedy.

I suggest keeping an eye on Orin Kerr, as he clerked for Kennedy & thus has a better clue than most of us how the man's brain works.

[Ugh]

No, it's called vodka.

[Nell]

Is there any thought that this decision to re-hear has anything to do with the recent press on the shoddiness of the CSRTs?

I realize we're all supposed to pretend that external-to-the-court-system political news and events has no bearing, but I have trouble imagining what led to this when they only recently decided not to take it up.

[Nell]

Ah, I see that I completely missed the answer to my question in the excerpt hilzoy quotes:

The court did not indicate what changed the justices' minds about considering the issue. But last week, lawyers for the detainees filed a statement from a military lawyer in which he described the inadequacy of the process the administration has put forward as an alternative to a full-blown review by civilian courts.

[CharleyCarp]

Nell, they called for a response from the SG before the McGarrah/Abraham affidavits. I think both had an impact, as I think the Cheney stories in the Post did. But they were already on the road to this -- I'd guess Justices Stevens and Kennedy were more than open to reconsidering their concurring opinions, well before.

I'm sure the excellent team of lawyers working this issue had a great impact. My pet theory, though, based on nothing, has to do with the realization on the part of the two concurring justices that they may have misunderstood the SG's footnote in his opposition to cert about the exact status of the leading DTA cases. The SG said

The D.C. Circuit has ordered expedited briefing and argument in
Parhat and Bismullah to consider the nature of review under the DTA and issues relating to the entry of a proposed protective order addressing, among other things, counsel access to classified information. Oral argument will be held on May 15.

One could get the erroneous idea that merits briefing in Parhat and Bismullah was on an expedited schedule, rather than just the issues of lawyer access to the prisoners, and to documents relevant to the case. With that misunderstanding, one might then do as the concurring judges did, and suggest that petitioners should try their luck with the DTA first.

It's clear enough, though, that merits decisions in Parhat and Bismullah are far in the future, as indeed the 'discovery issues' haven't been decided yet, and so the merits briefing has not even been scheduled. From the May 15 hearing, it's clear that there are a number of issues that are going to have to be hashed out, and if the Court is going to make everyone go through the DTA first, there will be innocent and/or improperly held people waiting additional years before their core contention -- that they are entitled to merits review by a real judge, as already held in Rasul -- could be re-affirmed, the MCA notwithstanding.

It's just a pet theory. When all the memoirs are written, I'm sure something completely different will prove to have been the case.

I note that the SC did suggest in today's order that if Parhat or Bismullah are decided during the pendency of Boumediene, there will be supplemental briefing.

[OCSteve]

I’m not sure how many disclaimers to put here. I’m truly interested in any thoughts on this – it is not meant to be a provocation or a retraction of my earlier “Good” statement above.

Hilzoy, CharleyCarp, Katherine, John, Jes and many others – you have truly changed my mind on habeas, Guantanamo, the definition of torture, and many related issues.

But then today we have these attempted bombings in London. All the facts are not in and may not be for days or weeks. But early indications are that these could have been very lethal FAE bombs, and the fact that they did not detonate was not due to a lack of effort.

If the early reports bear out, one of the prime suspects was previously in custody due to ties with Dhiren Barot – but he was released due to a lack of evidence. He had his due process. Today he may have made a pretty good attempt to kill hundreds of innocents.

In all honesty, I am not sure where to slate this - between locking someone up on reasonable suspicion (and possibly denying habeas) and giving these types of suspects full legal rights that someone who allegedly committed a different crime would get. Is there nothing in between?

This may be too early and what we think we know now may not turn out to be true. But for the obvious reason, if it does, I feel like this guy should have been held somehow. I’m having a little difficulty with this situation.

I really do support some kind of action on these folks stuck in limbo down in Cuba – but where does this fit in?

[Katherine]

Okay, for one, you don't deny habeas. If you want to make it legal to lock someone out without convicting him, that. I thought Britain actually had an administrative detention law, so I don't know why this guy wasn't covered--if it's the same guy; we basically know almost nothing, or at least I can't find any news reports.

I'm highly skeptical of proposals for administrative detention. It's possible to write substantive terrorism laws that make it pretty easy to convict someone if there's any solid evidence against them--criminalization of "conspiracy", "material support," etc. We've convicted people for decades for playing paintball in the woods, and look at what Padilla's currently charged with.

There's also the intermediate possibility of keeping someone under extremely close surveillance even if you don't keep them in jail. I have no problem with this. And it could pretty quickly lead to gathering enough evidence for an arrest.

None of these are foolproof. There can be cases when you take someone into custody, and he denies involvement, and you have no reliable evidence to the contrary, and you honestly conclude he's not a terrorist & release him w.o surveillance, and you're wrong. But in those cases, with so little evidence, would we have a basis for administratively detaining the guy?

One final note: many, many, many of these cases are broken because of you make it legal. Suspending habeas, though, means that you don't even have to bother making it legal.

You seem to be considering supporting some form of administrative detention. There are various proposals for an informant reporting suspicious behavior. If I thought my neighbor was acting suspicious but wasn't sure, whether I reported it would depend very, very heavily on whether I trusted the gov't to treat him fairly if I reported my suspicions.

I don't know whether this addresses your concerns. It's hard to answer in any detail w.o knowing more about the circumstances.

The Supreme Court, by the way, already upheld administrative detention for U.S. citizens captured in Afghanistan in Hamdi, so I doubt that the "charge them in civilian courts or release them" dilemma will come up in the context of Guantanamo. I'm just weighing it as a policy matter.

[Katherine]

My first para. got all screwed up....

What I was trying to say is that you should separate the question of habeas corpus from the question of administrative detention. Habeas corpus is the right to go to court and claim that the gov't is holding you illegally. An administrative detention law makes it legal for the gov't to hold you for a certain amount of time without a civilian criminal trial. In England, the cops can hold terrorism suspects in administrative detention, without charge, for 28 days, and the gov't has proposed extending that to 90 days. I worry about the consequnces of laws like that, but if you favor them, realize that they do not necessarily require a denial of habeas rights. It's possible to file a habeas petition, have a court hear it, and conclude that the gov't is holding you legally in accordance with the administrative detention act.

[Nate]

I'm not gonna get my hopes up. With the Court recently slanted by Bush's appointees, I can't say I expect that much from it any more. Even less than I have ever since the blatant hackery of Bush v. Gore.

[Ara]

OCSteve: I guess my question is: why does finding a way to hold him somehow compel us to deny habeas?

If you want RICO-style laws to arrest terrorists by association, as much as I'd have misgivings, those misgivings would be of a different grade than my misgivings over denying habeas. If you want to detain him for associations to Dhiren Barot, then fine. Just use a court to prove that those associations existed.

That is, I do not see why giving people habeas rights should be a get-out-of-jail card, which is why I do not see the merits behind the argument for denying habeas.

In my mind, at least, due process is linked to the fair epistemic procedure for discovering facts about people and crimes. Which is why I can't compute claims that we know X about Y independently of due process.

[Ara]

Hmm... If I had seen K's post I would not have made mine.

[OCSteve]

Thanks Katherine.

Some of my confusion is no doubt related to differences in US and UK law. Administrative Detention is likely where I was headed. When we know all the details I’ll be curious to hear how you think a similar case would have played out here with habeas in play. (Seems to me he would have still been released as there was no clear reason to detain him.)

[Jesurgislac]

OCSteve: If the early reports bear out, one of the prime suspects was previously in custody due to ties with Dhiren Barot – but he was released due to a lack of evidence. He had his due process. Today he may have made a pretty good attempt to kill hundreds of innocents.

Yes, but - and this is an important point - the plot didn't succeed.

Both bombs were uncovered (BBC Q&A here because alert members of the public reported what they'd smelled/seen to the police, and the police showed up rapidly and defused the bombs.

People do that. (Especially, after all these years, in London.)

I don't say that you wouldn't get an alert population ready to report suspected bombs to the police (and not worried about what the police reaction will be to an honest mistake - though I have a friend who almost lost a suitcase full of Chinese porcelain when airport security wanted to forcibly defuse it...) if you had a society where people knew they could be locked up forever and never see a court. (And sadly, there are people being held in "administrative detention" within the UK - internal Guantanamos for non-citizens. I find this unspeakably disgusting.)

But, I do think that the two go together, hand-in-hand as it were, much better than if you try to separate them. Suspects against whom nothing can be proven must be released. People ought not to fear calling the police and saying "I think there might be a bomb in that car."

[CharleyCarp]

No matter what kind of process a state has in place, there's going to have to be a threshold -- some level of evidence for a suspicion -- below which a person cannot be held. Whether we're talking about setting off bombs or robbing 7-11s.

Given the existence of the crime of conspiracy, and the way the evidence rules treat statements of co-conspirators, it seems to me that the threshold is already pretty low for bomb plot people. So that's one thing.

Another is that you have to distinguish, in deciding whether letting someone go was a 'but for' cause of something else, what role the guy played. If it's the guy who had the idea, or played a significant role in something, that's one thing. On the other hand, if it's just the driver, and if there are plenty of people who could have been asked to be the driver, then it's not causal at all.

Against custom and judgment, I commented some on the Volokh thread on Boumediene last night. Some people were making the most amazing contention: letting a bunch of shepherds, schmoes, and wannabes go free is going to cause the US to lose the war on terror. It's just so far out of touch with reality to think that we're teetering on the brink, such that if Bin Laden's driver and the Canadian teeneager who threw the grenade (the only 2 guys there indicted) ever get out, we'll just have to surrender. Other than the high value guys, there are a whole lot of people who, even if they were part of the war, were really nobodies. And the government thinks they were nobodies -- so it's not really a matter of contention that holding them doesn't really matter.

Anyway, thank goodness for alert Brits.

[john miller]

OCSteve, I have to admit that when I first heard the rreport you were alluding to, my thoughtas went in your direction. At the same time, I have to wonder at what point we turn away from our basic rule of law in order to do something that may, at some vague time in the future, prevent some event from happening.

Are we going to lock up everybody that we suspect of drinking because they may drive a care and kill a family in another car?

Yes that is extreme, and I realize it. But it still goes to the same point.

PArt of the problem has been, in the past, the Brits working on a case, the US making some announcement, and the Brits having to make a move before they were ready. That may have been the acse here.

But at a deeper level, if we stretch the rule of law, what type of country are we trying to protect?

Do we have the right to put someone away because we suspect that s/he may be a bad person who may want to hurt us?

This goes well with the whole discussion about what values we project as a country.

And it something that does require real discussion, not just a bunch of emotionally laden phrases, with automatic condemnation of anyone who disgrees.

[OCSteve]

Jes: Yes, but - and this is an important point - the plot didn't succeed.

But possibly only due to a design flaw: One thing not mentioned in that Q&A is that allegedly the cell phone detonator had already been called twice.

Now that I am a little more awake, let me clarify my original question. I did not intend to imply habeas should be denied in a case like this (right now it possibly would be). I think that Ara and Katherine both hit pretty close to where I was going.

With habeas guaranteed, what do we have on the books such that this guy would have remained off the street? Or, what needs to change to insure that outcome (assuming it does turn out to be the main suspect right now)?

It sounds like there was enough to charge this suspect with in 2005 but rather than have to expose sensitive intelligence in court the government imposed control orders on his group (cell?). That requires them to stay in their home for 18 hours per day. Jes – does anyone actually consider that to be effective? Do you know if it even includes GPS bracelets the way we sometimes do with house arrest?

Katherine mentioned administrative detention, but that seems very short term. It was 2005 so this guy would have been way beyond any limits on administrative detention.

We also have the same issue with the government not wanting to expose sensitive intelligence in open court. I’m assuming that at a habeas hearing in the US, if the government said we can’t show you our evidence judge the judge would say set him free. CC mentioned that the threshold is already pretty low for conspiracy in a case like this, but if the government can’t share the evidence due to blowing sources where does that leave us? (I understand that this can be and likely is abused.)

As Ara mentioned, do we need a RICO style law to apply to terrorist suspects?

John: This goes well with the whole discussion about what values we project as a country.
And it something that does require real discussion, not just a bunch of emotionally laden phrases, with automatic condemnation of anyone who disgrees.

Agreed. And I’m trying to be careful myself to approach this in such a way to be clear I’m trying to foster my own understanding, specifically to understand what we have or what we need to plug what appear to me to be some gaps.

And of course as I type this, the flaming SUV crashing into the doors at Glasgow airport story is breaking…

[hilzoy]

Yikes, the what? (Off to BBC)

[OCSteve]

Pretty confusing at the moment Hilzoy. The AP was saying it may have been an accident, but other sources are saying gas cylinders and Molotov cocktails were involved.

[Ara]

john miller: I thought about the kind of case you present. In fairness, I think there is a disanalogy between the detention of terrorist suspects and, say, detaining drunk drivers because they're likely to be harmful.

I can't nail the distinction, but let me make up a hypothetical and ask you what you think. Let's say that we did a study and found that men who were the source of domestic disturbance calls were highly likely to go on to do much worse in the next 3 days. Would you support a preemptive detention? It's not beyond the pale to endorse such a thing. My hunches tend towards limiting government power, but that doesn't extend to thinking that gov't has to sit on its hands and wait until awful things happen.

Again, I really have no problem with detention, assuming that the police apparatus of the country hadn't gone totalitarian. I think of the JS Mill quote Hilzoy posted recently. There is simply no policy that any of us could propose that wouldn't become nightmarish when coupled with a deranged institution. Currently, we have bad laws *and* deranged institutions. If we had administrative detention in this country and the police abused it rampantly, then we'd have to look at policing the policemen. But that doesn't mean there is no place for a sensible detention policy.

[CharleyCarp]

OCS, there are procedures for using classified information in courts. They'll never leak as badly as the FBI.

There does have to be a line, and it has to be drawn at the point where there has to be evidence that the person either did something illegal, or is part of a group that has agreed to do something illegal, and has taken at least the first step in doing so.

We can't have a country where the state can lock people up, without review, just on the say-so of a confidential informant.

[Jesurgislac]

OCSteve: We also have the same issue with the government not wanting to expose sensitive intelligence in open court. I’m assuming that at a habeas hearing in the US, if the government said we can’t show you our evidence judge the judge would say set him free. CC mentioned that the threshold is already pretty low for conspiracy in a case like this, but if the government can’t share the evidence due to blowing sources where does that leave us?

With a free country, in which people need not fear being locked up indefinitely because the government says to the court "Hey, trust us, that guy should be locked up" and the court obeys.

You'd rather live in a country where the government has the power to imprison people indefinitely without needing to explain to a court why they want to, if the government promises you that giving them that power would keep you that little bit safer.

I'd rather live in a country where the government isn't allowed to do that. Risk of terrorist bombs or not: I don't want to live in a country without habeas corpus.

[OCSteve]

You'd rather live in a country where the government has the power to imprison people indefinitely without needing to explain to a court why they want to, if the government promises you that giving them that power would keep you that little bit safer.

Mind reading Jes?

I’m trying to foster my own understanding, specifically to understand what we have or what we need to plug what appear to me to be some gaps.

[Jesurgislac]

OCSteve: Mind reading Jes?

Nope: going by what you said.

The "gaps" you want to "plug" are the basic freedoms.

You said:

We also have the same issue with the government not wanting to expose sensitive intelligence in open court. I’m assuming that at a habeas hearing in the US, if the government said we can’t show you our evidence judge the judge would say set him free. CC mentioned that the threshold is already pretty low for conspiracy in a case like this, but if the government can’t share the evidence due to blowing sources where does that leave us? (I understand that this can be and likely is abused.)

You think that letting the government tell a court "we have evidence that says this man is guilty, but we can't show it to you, you'll have to take our word for it that it exists" can be and likely is abused? No.

The existence of a government's right to do that to someone is an abuse of the justice system. Once allow that a government has a right to jail someone because of secret information they don't have to share with the courts, and you don't have a justice system. You want to "plug" this "gap"? Then you want to live in a country where the government can imprison people on their say-so, and you're willing to accept this as the price of safety.

I'm not.

[OCSteve]

Then you want to live in a country where the government can imprison people on their say-so, and you're willing to accept this as the price of safety.

Wrong. I’m asking what lies between that and telling such a terrorist suspect that they have to remain in their home 18 hours a day and apparently trusting them to do so.

The UK has escaped some major casualties in the last few days only through sheer luck, or rather through the sheer incompetence of the wanta-be jihadis. I’m not exactly trembling in my bed at night thinking about some would be terrorists that can’t figure out how to ignite gasoline. And at the moment they are in your front yard, not mine.

I’d like to have the conversation without you jumping to the conclusion that I’d prefer to live in a police state because I’m frightened of the big bad terrorist.

[Jesurgislac]

I’m asking what lies between that and telling such a terrorist suspect that they have to remain in their home 18 hours a day and apparently trusting them to do so.

Again, you're kind of missing the point.

A terrorist suspect is someone who has been accused of a crime. A heinous crime. But someone who has not been convicted of a crime. Against whom there is insufficient evidence to convict them in court.

What are you prepared to let the government do, OCSteve, to people who have been accused of heinous crimes, but the government was unable to provide sufficient evidence to prove them guilty of those crimes?

The UK has escaped some major casualties in the last few days only through sheer luck, or rather through the sheer incompetence of the wanta-be jihadis.

We've been through this before. Go read the history books about what terrorists did to UK cities in the past four decades.

I’d like to have the conversation without you jumping to the conclusion that I’d prefer to live in a police state because I’m frightened of the big bad terrorist.

Wait - you are insultingly, patronizingly, assuming I'd rather live in a police state? You're not describing how you want to rewrite your justice system to sell your freedom for safety, you're describing how you want to rewrite mine to sell my freedom for safety?

Now I'm really, genuinely angry with you. And I suspect you don't even see why, if you're still not seeing that arguing for imprisoning people because they are suspects is arguing for a police state.

I don't want to live in a police state.

How often do I have to say that before you'll believe me?

I had rather live in a country where the courts let terrorist suspects walk free, even if the price is that some terrorist suspect will turn out to be actual terrorists and will set off bombs (or try to) inside cities. I had rather not trade liberty for safety.

I could tolerate your arguing that you would rather trade your liberty for a little safety.

But don't you dare argue that I ought to. Or, I swear, I will turn into every British elderly grump and start banging my cane against the floor and shouting that this is not what we fought the Nazis for.

It isn't what I want my country to be.

It is a standard excuse used by every British government since the IRA first started bombing and before: that we ought to tolerate suspects being held for 48 hours of police questioning, non-citizens being held in detention centers, people with the wrong accent in the wrong place at the wrong time being suspects, police powers to shoot down an innocent person running for a train - I say no.

I'm not alone in this. This is not what I want my country to be.

[Jesurgislac]

I don't actually have a cane.

And even my dad was just too young to be in WWII. (My granddad was. On my mother's side. My mother was a child refugee.)

Still, really. Suspects against whom nothing can be proven walk free. That's not a "gap". That's a feature.

[OCSteve]

Wait - you are insultingly, patronizingly, assuming I'd rather live in a police state?

Jes: I don’t even know what you are talking about now or how you got all that out of what I wrote. You are the one making assumptions here. It’s obvious this is rather fruitless.

[J Thomas]

"Then you want to live in a country where the government can imprison people on their say-so, and you're willing to accept this as the price of safety."

I’m asking what lies between that and telling such a terrorist suspect that they have to remain in their home 18 hours a day and apparently trusting them to do so.

OK. One way is we give the secret information to the judge and let him decide. We give up the right of defendants to confront their accusers, but if you can't trust a judge with secret information you can't trust him with people's lives. Of course, we might get judges appointed for political purposes that we indeed can't trust to release innocent people that the government wants to jail.

The next step is we let the defense lawyer look at the data but we don't show it to the accused. For that to work we have to appoint his defender, we can't let him appoint somebody who might himself be an enemy of the state. This is the approach the USSR used, and it guaranteed that citizens got no more civil liberties than the soviets wanted them to have.

The next step beyond that is we let the accused see the evidence against him. He might use that to figure out how we caught him. He might transfer that information to his friends. But we can minimise that. We can save cases for a few months and introduce the evidence found by a particular method in all of them at once.

And there's no reason to think they don't know our methods already. In WWII we invented radar chaff -- little strips of bent aluminum that we dumped out of planes. It was top secret even though german civilians could pick it up off the ground. The germans independently invented it and made it stop secret even though english civilians could pick it up off the ground. It makes sense that al qaeda is sending a lot of test messages to see which get intercepted. One message says to bomb the federal reserve building in philadelphia, one says to bomb a bank in baltimore, etc. They see which ones generate a big security scare. Or they send messages telling one innocent civilian to contact another. If we arrest them, then that communication channel is compromised. If we have methods that are actually working, it means we are letting most of the info through and watching lots and lots of people that we don't arrest.

What if we extended that further? Say we occasionally pick somebody we think is al qaeda and we bring him in. "We want you to be a double agent for us." If he agrees then great. If he doesn't agree, should we arrest him and go through all that trouble? What if we just let him go. "Let us know if you change your mind. You have our number." He knows we'll watch him. He's burned. Anybody he contacts might be burned because he contacted them. If he flies home then good riddance. He became totally useless and we didn't need a trial, we didn't have to reveal anything about how we found him. Even worse for them, they get to think about whether anybody else has taken our offer. The more paranoid they get about double agents among them the less threat they are.

If we want to catch the people who did 9/11 then we probably want to put them on trial and punish them. But when we actually catch them before they do anything, why bother with a trial? Just stop them. No trial, no punishment, just scare them and make them think they can't win.

I’d like to have the conversation without you jumping to the conclusion that I’d prefer to live in a police state because I’m frightened of the big bad terrorist.

I get the strong impression she's right about that.

I think the US government probably wants to keep our methods secret from the US public a lot more than we want to keep them secret from al qaeda who probably already knows.

So, can you imagine a method the government could use to jail people without telling anybody why, that wouldn't amount to simply trusting the government about all our civil liberties? If they can jail you indefinitely without revealing their evidence that you've committed a crime, what other rights do you have that matter?

I don't claim that our traditional rights are sufficient. But how can we do without them and still have a workable constitution? When you ask how to make a workable compromise about fair trials, it sure sounds like you prefer to live in a police state.

[OCSteve]

And it something that does require real discussion, not just a bunch of emotionally laden phrases, with automatic condemnation of anyone who disgrees.

I gave it a try John. You can judge the results for yourself. I give up.

[J Thomas]

OCSteve, do you feel you're being treated unfairly?

I should point out that there have been times in living memory that US citizens accused of crimes for which they weren't allowed bail, or who couldn't raise bail, had to wait as long as a year before they could have their trial. Not because of any conspiracy, we just had a backlog of cases and not enough judges and all. Of course, one consequence was that sometimes DAs could offer a plea-bargain where the accused could plead guilty and do less time than he'd do waiting for trial. That sort of tilted the odds that innocent people would plead guilty.

The reason I know about that is that it's public record. It wasn't people imprisoned secretly, with secret trials and secret evidence and secret prisons. Much less people secretly put in secret prisons with no trial at all.

If you want some compromise about secret evidence, why don't you tell us how you want it? Because it really does sound like you're advocating we trust the government not to make "mistakes" about that, but you say you aren't. So what's your idea?

[Anderson]

OCSteve, you seem to be concerned about the kind of legal system that would release someone held on insufficient evidence, even though the authorities strongly suspect that the person really is a danger, and where the released person then goes on to do exactly what the authorities fear.

But America already has that system, and has always had it.

Police are frequently forced to let suspects walk b/c there's not enough basis to hold them. Some nontrivial % of these suspects then go on to do bad things. Some of them kill people.

I don't think it makes much difference to the murder victim whether he was killed in a "terrorist attack" or in a stick-up at the corner store.

So I guess I don't see why the normal rules are so much worse at Gitmo than they are in Jackson, Mississippi (where the "revolving-door" problem at the city jail is indeed a problem). And yet, no one has yet called for the Constitution to be suspended.

[Jesurgislac]

OCSteve: I don’t even know what you are talking about now or how you got all that out of what I wrote.

You keep saying that there has got to be a way to plug the "gap" that means people who are suspected, not proven, of heinous crimes, get to walk free.

I keep saying that means you want to live in a police state, because in a free country, that's not a gap you want to "plug": it's a feature that you should be proud of.

And then I got all splenetic and ranty when it appeared you were saying that in the UK we ought to consider "plugging" that "gap" because, after all, in the past two days we've had two car bombs planted and one flaming jeep, and to that I still think "Jesus, you *bleep* *bleep* *bleep*, we are not sheltered Americans who woke up with a jerk on 9/11, we are a nation who has been living with terrorism for four goddamned decades."

[Jesurgislac]

And I'm sorry, I'm clearly still getting a little splenetic and ranty about this: OCSteve, I'm sorry I called you *bleep* *bleep* *bleep*, and I'm sorry I implied that on September 11, you woke up with a jerk. I'm sure whoever you woke up with was extremely nice.

[Hartmut]

Although Jesurgislac "gets a bit emotional" here, I fully agree with her that advocating for the option of open-ended jailing/detention based on evidence kept from all involved, is effectively advocating the abandonment of a system of justice worth the name. I would not claim that OCSteve actually wants that but he seems not to realize that it is the inevitable result of his line of argument.
Arguing for a possible limited time-span of detention in case of "clear and present danger" on the other hand would be imo legitimate. I would not like it but I see it as an option that would not automatically abandon the system of justice in favor of lettres de cachet (spelling?) or a star chamber.

[J Thomas]

Hartmut, I tend to agree. We already allow detention for victims of epidemic diseases. No criminal charge, just you're under quarantine until you stop being dangerous.

But we don't do that secretly. We tell people what's going on, and why it's going on. If we had secret detention for relatively short times, we should still have a clear explanation after the fact.

Also, strenuous interrogation is not a particularly good way to get information, but it's very reliable for getting confessions. Detainees will confess to whatever the interrogator wants. This means that not only are confessions suspect but confessions that corroborate each other are just as suspect. I think it might be good to accept legal confessions only if the confession is made in the courtroom while blood tests confirm that the suspect is not afraid.

[CaseyL]

OCSteve, having bad people go free is one of the risks our justice system runs. The compensating factors are that we're less likely to imprison someone unjustly, and that the justice system will not be used as a political weapon.

A system that guarantees bad people won't be set free... doesn't actually exist, one; and two, the bad consequences of such a system far outweigh the imagined benefits.

There are risks inherent to any justice system. I prefer the risk of letting bad people go free to the risk of star chambers, lettres de cachet, and letting the government decide - ad hoc, unilaterally, and for its own purpose or convenience - who "enemy combatants" are.

[CharleyCarp]

OCS, while you're clearly taken aback by the strength of the reaction to what seems (to me) like musing aloud, you have to understand that what your suggesting is really playing with fire. Our Constitution says that the government cannot deprive any person of liberty without due process of law. The barons got essentially the same promise from John at Runnymede.

We've learned through centuries of bitter experience that when you give a state the right to cut corners on essential human rights, it uses, and then misuses, that power.*

Before rushing to decide that new systems are required, one should try to figure out whether we've had a human failure or a systems failure. The latter isn't 100% avoidable, but I think it's pretty much guaranteed that if an FBI agent is ever suspicious about someone taking flying lessons, it's going to get taken seriously. For example.

* I haven't looked lately, but I recall the stats on the Patriot Act not being particularly strong on actual terrorism, but maybe more focussed on run-of-the-mill lawbreaking. I'm not saying that run-of-the-mill lawbreakers ought to be let go. Just that the smart people who've been talking for the last 25 centuries about the corrupting influence of power were on to something.

[OCSteve]

One more try…

The attempted bombings seemed like a great time to discuss this. Rather than make up a hypothetical case – here we had a real one. I wanted to explore the range between suspending habeas and what happened here (as I understand it, house arrest for what may have been a solid terrorism suspect, because the government did not want to disclose sources and means in open court). I said:

I’m not sure how many disclaimers to put here. I’m truly interested in any thoughts on this – it is not meant to be a provocation or a retraction of my earlier “Good” statement above.
Hilzoy, CharleyCarp, Katherine, John, Jes and many others – you have truly changed my mind on habeas, Guantanamo, the definition of torture, and many related issues.
…
I really do support some kind of action on these folks stuck in limbo down in Cuba – but where does this fit in?
…
I did not intend to imply habeas should be denied in a case like this…
…
And I’m trying to be careful myself to approach this in such a way to be clear I’m trying to foster my own understanding, specifically to understand what we have or what we need to plug what appear to me to be some gaps.

Katherine, Ara, CharleyCarp, and John came back with substantive replies (thank you all). Jes, you did initially as well (thank you). It was exactly the conversation I was looking for. Then it went from there to me wanting a police state – exactly where it ends up anytime I get even close to this conversation. Then (Jes) you came out with some stuff that I never came close to saying. J Thomas concurred that I would prefer a police state.

Fine. I’ll add this to my list of things “that must not be discussed at ObWi”. Some topics are obviously just out of bounds for discussion. If I really feel the need to discuss it I’ll take it elsewhere. Here, I will censor myself.

Jes: feel free to *bleep* away at me whenever you like. I like to think that we respect each other and can have a frank give and take. But if you feel like you are mad enough that you might get yourself into trouble here, just say the word and I’ll open a thread at Tio where you can really let loose at me - anytime. I don’t want to see you get banned here on my account as I value your participation.

[CharleyCarp]

Well, maybe the Brits need CIPA. Maybe they need better stake-outs. Worthy subjects for discussion.

'Maybe we ought to let the government lock up people it doesn't like, even if there's no evidence' -- which seems to be what people heard, although apparently erroneously so -- is the kind of incendiary thing that isn't going to be conducive of productive conversation. In every subject area, I think turns of phrase can be found that might lead to a similar derailment. (Maybe they ought to figure out a way to ban the drinking of beer during the NFL draft).

[OCSteve]

CC: Cross posted with you – or rather I was composing while you posted. You seem to be affirming though that the topic is just out of bounds for discussion. I really just wanted to explore what we have vs. what we might need in this type of situation, because a real life example presented itself.

I’ll drop this and won’t bring it up again (here). I’m taken aback that a topic is just out of bounds for rational discussion here, no matter how carefully and politely I attempt to approach it.

[OCSteve]

When you feel the need Jes… ;)

[hilzoy]

OCSteve: it shouldn't be out of bounds.

The way I see it, the crucial thing is to recognize that whatever we do, it will have to be a general policy, and almost all general policies give the wrong answers sometimes. If we have a general policy of allowing the government to lock people up when they don't have adequate evidence, then we will presumably end up locking up the wrong people -- or rather, since we do that already sometimes, we'll lock up a lot more of them than we do now. And there will be very little we can do about it -- it's hard to give people back years of their lives, years that (perhaps) they spent not being with their kids as they grew up; or to make the people they know stop wondering whether they are guilty after all, or make it stop being hard for them to get jobs once they get out, and so forth.

If we adopt a general policy of not imprisoning people without enough evidence for first an arrest and then a conviction, then we will presumably let more people out who should be behind bars. One feature of these mistakes is that it is possible to mitigate them, more so than mistaken imprisonment. We can put the person under surveillance, for instance. Serious surveillance, if necessary. (And if the government is not confident enough of its case to get the resources to do that, it is not confident enough to put someone behind bars.)

Plus, in this case the government does not get powers that it is likely to abuse by turning them on people who are not terrorists.

But I think the key thing is: we will make mistakes whichever policy we adopt, what with being human and all. It's just a matter of which mistakes are worse, and which are harder to correct.

Also: sorry for not being around earlier. I have, get this, a bad earache. I have not had any earache, bad or otherwise, since quitting competitive swimming when I was 13. I went to the urgent care part of the hospital earlier, scowling and thinking to myself: what childhood disease is next? Tonsillitis? Grr.

[J Thomas]

OCSteve, I'm not sure what you want. You sounded like you were confused on the concept. I'm not confused and I gave you an answer. So you asked again. And you'd asked several times before that, and gotten the same answer from various people. It was like you were waiting for some *other* answer.

Now you say this is a topic that can't be discussed. But we *were* discussing it. We said we didn't want to live in a police state and you kept asking for a better answer than not living in a police state. We can discuss it again any time you like.

I provided another solution and you didn't respond to it at all. I will present yet another one.

Our legal system is entirely about justice, about punishing people for their crimes and letting the innocent go free, and also of course avoiding crimes by the police. It is mostly not about preventing people from doing bad things beforehand.

If your ex-girlfriend is scared of you, she can get an injunction that says you have to stay away from her. And then if you approach her and scare her again, she can go to the police and the court and get another injunction that says you have to stay away from her. And if you still scare her, she can get a third injunction. And then if you actually hurt her, you'll be in a lot more trouble than you would have been if you just hurt her the day she moved out. This isn't a lot of consolation to her.

If we want to keep bad things from happening, the legal system is mostly not the way to do that. It's about punishment for what you've done, it isn't about predicting what you will do and locking you up to stop you.

It's mostly illegal for our police and courts to intentionally lock people up who haven't committed a crime. That isn't something we want our government to do.

Well, we can hope that some people will be deterred from crimes because they think they'll be caught and punished. And no doubt that works sometimes on some people. But it definitely isn't going to work on somebody who intends to commit suicide while doing his crime. That's a kind of loophole, isn't it? Our legal system isn't really set up to deter people like that.

I can think of a couple of exceptions where the system looks ahead. If a traffic cop sees that you're driving erraticly, he can stop you and try to figure out what's going on with you. If you're drunk, that's illegal and he can arrest you. If you're simply not fit to drive, so you're a danger on the road, he may perhaps arrest you and he may settle for getting you off the road. If you are, say, too sleepy to drive then that's a sort of reckless driving.

A second example -- you can be involuntarily committed to a mental hospital if you appear to be a danger to yourself or to others. Somebody has to convince a court that you are a threat. Then you go into a lockup ward for an indefinite time. It isn't a punishment, they just want to watch you and see whether you look dangerous. They may inject you with whatever drugs they think will do you good in their professional opinion. They may require you to do group therapy or whatever, and if you refuse then your noncooperation will be considered a sign that you need more treatment. You will be kept locked up until they decide in their professional opinion that you are no longer a danger to yourself or others.

It doesn't happen because you deserve it. It doesn't matter whether your violent feelings are a response to an injustice that truly deserves to be corrected. Just being a danger to the bad guys is enough to get you locked up.

We could use this approach. If we have reason to think that a man wants to become a suicide bomber, enough reason to persuade a court, then he can be put in a lockup ward with a bunch of crazy people, and tranquilized, and they don't have to release him until he convinces them that he no longer wants to be a suicide bomber. Is he a criminal? A POW? An illegal enemy combatant? No, none of those. He is under observation because he may be a mentally unbalanced person who's a danger to himself and others. He has various legal rights that he doesn't get to exercise -- a sane legal guardian will watch out for his rights because he isn't competent to do it himself.

However, you don't get to torture crazy people to make them tell you the truth.

And their word is no good when it comes to testifying against other crazy people.

So that's one alternative. As a way to guard people's civil rights it's utterly inadequate. All it takes is one mental hospital where the staff is cooperative, and the administration's political opponents could be locked up indefinitely with no legal rights (that they can use themselves, but court-appointed guardians will look after their rights for them). It could go farther -- dose the opponent with psychoactive drugs and get him acting crazy in public before you drag him away....

This takes no new law, it's how we've done it for a long time.

We can put dangerous terrorists away without any mention of the Patriot Act. We can put anybody away this way. Always could.

[Jesurgislac]

The attempted bombings seemed like a great time to discuss this.

Well, we are discussing it.

My contribution to the discussion is that I don't want to live in a country where the government has claimed the power to instruct a court to convict someone without showing the court the evidence that proves that person is guilty, because that is a police state.

And one reason why I'm getting a bit emotional about this is that governments tend to think, like you do, that the aftermath of an attempted/successful terrorist attack is an excellent time to "discuss" why this "gap" should be "plugged". And unlike you, they actually have the power to "plug" that "gap" - to make it easier and easier to lock people up without ever having to say why.

The only reason you've come up with so far why it would be a good idea for the government to be able to instruct a court to convict without providing the evidence, is that it's just possible that being able to do so might prevent future terrorist attacks.

And I say, and I think I have a right to say this, having all my life lived in a country at risk from terrorism, that that is a price I am willing to pay.

You don't appear to want to discuss the possibility that a person might consider granting powers to the government to convict without evidence a greater threat than terrorism. Fine. Don't.

But there are greater threats than terrorism, and there are things one can do to make the threat from terrorism greater. One of those things, as I said in my first comment and I don't think you ever responded to, is a country where the ordinary citizens fear the police and fear the government and would never take the risk of calling the police to report a suspected bomb.

But I think you have to acknowledge that, if you want the government to have the power to imprison people without showing evidence to a court, you want a police state. There are no ifs about this.

[liberal japonicus]

You know, removing those second person pronouns would make it a lot easier to discuss this. You are emotional about it, fine, but rather than accusing OCSteve of wanting a police state, discussing how what he proposes weakens the fabric of laws that we have by such a great degree that many of the problems that OCSteve has with intrusive government would be unavoidable might be more profitable if you want to change minds. Note that this has not one damn thing to do with what OCSteve wants or doesn't want, and, as much as I agree with the basis for your thought, accusing him of wanting a police state is rhetorical hyperbole and you should apologize.

And Jes, the notion that a police state would have people so fear the consequences of calling in to report a bomb, that we would have more bombings is not borne out by history, because police states generally function by demonizing a group of people, so that the other citizens in society would more likely rather than less likely to call in to report a suspected bomb. The problem is that bombings would be taken to be legitimate protest by some, and the police would be overwhelmed by reports that they wouldn't be able to process them and would further lash out at people who were innocent, which would create the future terrorists. This is actually a greater challenge to OCSteve than your notion that no one would report things out of the ordinary, because a vicious circle is created.

[CharleyCarp]

Oh, I wasn't saying that I think the topic is out of bounds. Just that particular turns of phrase are not conducive to reasoned discussion. This runs both ways, obviously.

[Jesurgislac]

accusing him of wanting a police state is rhetorical hyperbole and you should apologize.

No, it's not hyperbole. I do think that OCSteve has not figured out that wanting to give the government the power to instruct courts to convict without showing evidence that proves the suspect is guilty is what police states do, and that in arguing that this would be a good thing he is arguing that living in a police state would be a good thing. That's not hyperbole: that's just what he's doing.

I think it's absolutely right that anyone should be able to argue any angle on this blog. OCSteve ought to feel free to make his case for a police state. But he can't really object that he's being prevented from doing so: he isn't. Expressing anger and outrage at an argument for a police state is not to censor that argument: it is to say what you think of that argument.

[Hartmut]

Historically people were locked away in mental asylums for believing in democracy (it was officially listed as a mental disease at times). And in WW1 people were treated the same way for publicly doubting the competence of the military and political leaders (while other countries "only" jailed them for defeatism).
Hand count: who would absolutely exclude the possibility of "Bush Derangement Syndrome" becoming a case like those (or would have excluded it 3 years ago)?

[liberal japonicus]

I do think that OCSteve has not figured out that wanting to give the government the power to instruct courts to convict without showing evidence that proves the suspect is guilty is what police states do, and that in arguing that this would be a good thing he is arguing that living in a police state would be a good thing. That's not hyperbole: that's just what he's doing.

That's not what you said. You said he would rather live in a police state, which is the same as saying he wants to. Now, you say he hasn't figured out the relationship. This suggests that before you were just trying to find his buttons to push. Get him swinging, get him to overreach and then you can get us all to pile on. So, going by what you say, you didn't want to change OCSteve's mind, you are just expressing your anger and outrage. Fine, but don't confuse expressing that anger and outrage as reasoned discussion.

[J Thomas]

LP, I don't see that Jes is failing to do reasoned argument. It's just that some time ago it turned into repetition back and forth.

It's like -- just imagine we were all anarchists, and we thought the government should never be allowed to collect taxes but instead run only on voluntary contributions. And then somebody says, "Well, but sometimes we really need the government to collect money from people involuntarily. You know, not at tax, but just taking money from people because it has to act and there isn't time to wait for voluntary contributions...."

And other people say "That's a tax."

"No, of course I don't want a tax. Just, sometimes we have to let the government take money from people whether they like it or not. Sometimes it's needed."

"No, that's a tax."

"But of course I don't believe in taxes. I just want to let the government take money from some people, sometimes, when it's *necessary*. And it can give it back later when the emergency is over, if they deserve it. But of course not a tax."

"No, that's a tax and you want taxes."

"I resent that! Of course I don't want taxes. I just want to explore how the government can get enough money in an emergency when people won't contribute enough. Give me some suggestions for how the government can get money from the people when they don't want to give it. You keep accusing me of wanting taxes!"

And around and around.

It's like that here. Whether OCSteve notices it or not, what he is asking for is a police state. Saying "I say it's spinach and I say the hell with it" *is* a rational argument.

[Decided FenceSitter]

Thank you Thomas for creating an analogy that I've tried to do and failed to many times.

[OCSteve]

Jes: But I think you have to acknowledge that, if you want the government to have the power to imprison people without showing evidence to a court, you want a police state. There are no ifs about this.

And if that is what I wanted then I would have to acknowledge that.

The “gap” I was alluding to was the fact that the government apparently did have credible evidence but could not show it to a court. What I want is a way for the government to use credible evidence when they actually have it. To be clear, if the government is unwilling or unable to present its evidence then the accused goes free. I do not want or trust the government to be able to detain people on any kind of “trust us” basis. I want them to be able to use the evidence they have. On the specifics of that:

CC mentioned that there are existing procedures to use classified information in courts. It appears those were not adequate in this case, maybe what we have in the US would have been. J Thomas suggested that the government could just trust the judge, but also notes that we would still be giving up the right of defendants to confront their accusers.

Considering all the other responses, the closest I come to any kind of conclusion is that the “increased surveillance” angle is the only thing that’s really workable; from the aspect of not giving the government powers that no one (myself included) wants them to have. From the perspective of resources, that kind of surveillance on any large number of suspects won’t actually be possible. But if the government has solid (but secret) evidence then we can hope that they focus on the most likely suspects.

[liberal japonicus]

Whether OCSteve notices it or not

I think it's a good thing to back away from the notion that OCSteve 'wants' a police state and that's where the discussion went downhill. What OCSteve wants has nothing to do with this discussion, and bringing it in is just muddying the water. Perhaps there is a 'rational' purpose in doing it, but it isn't a rational argument.

[J Thomas]

Hartmut, yes, involuntary commitment to the loony bin has been abused rather consistently. It is, though, an alternative to Patriot Act things that should be illegal, and it requires no new law at all. We've always been able to lock people up with the excuse that trained professionals say they're crazy.

The soviet union used to do that. Anybody they considered a "dissident" was automaticly classed as insane.

Once when I was very young I argued that with my aunt. I said, "We are so much better than the russians because they lock up dissidents in insane asylums and we don't."

She got a very vague expression and told me a story about a US government worker who got put into a mental hospital to keep her from whistleblowing. Her boss had her committed. I hadn't heard about that.

"Yes, but that was a criminal doing it to keep his crimes from being exposed. It wasn't the government. In russia the government has people committed just for opposing government policy!"

She got an even vaguer expression and changed the subject.

There are obvious abuses here. But still it's exactly what OCSteve was asking for, and it needs no new law. The government can lock up anybody they want for an indefinite time, on suspicion of being dangerous.

It doesn't let the government lock people up secretly. (Though there could be a clerical error. They could lock you up under the name "Julius Smith" and it might take awhile for your friends to figure out where you are.)

It officially doesn't let the government interrogate you. Though they can do whatever they want if a trained professional is willing to say it's part of your therapy.

It makes your testimony mostly worthless in court. But there's no need to try anybody, except the public wants to see people get sentenced and punished.

[OCSteve]

As others apparently know exactly what I was asking for and what it is that I really want there really doesn’t seem to be much use in me wasting my time with this. Later.

[Hartmut]

Your last statement (8:59 AM) sounded quite clear and reasonable

[Jesurgislac]

OCSteve: The “gap” I was alluding to was the fact that the government apparently did have credible evidence but could not show it to a court. What I want is a way for the government to use credible evidence when they actually have it. To be clear, if the government is unwilling or unable to present its evidence then the accused goes free. I do not want or trust the government to be able to detain people on any kind of “trust us” basis. I want them to be able to use the evidence they have.

They already do. It's within the power of the courts to decree a closed session (sorry, I don't know the legal word for it) - a court session which isn't open to the public and which all present, except the accused, are bound not to make public what was said.

What is assumed these days that when the US or the UK government claim to have evidence that they can't present in court, what they mean is, they have evidence obtained through torture/illegal detention. Evidence obtained by torture is not admissable in British courts (at least, it wasn't, and I hope it still isn't - the government has been trying to "plug" those "gaps"). Because if the evidence was simply confidential, a closed court session would work: but if the evidence simply won't stand up to examination, of course they don't want to present it in court.

[john miller]

LJ, thank you. I was away from computerland from the time I made my last post to now, and I was, quite honestly, amazed at some of the conclusions jumped to here.

OCSteve, I realize that you have no desire to live in a police state. And I think anyone who thinks that is making some major leaps.

The question, as I see it, and in this I agree with OCSteve, is that a society, any society, has to come to some form of decision as to what policy it is going to have to deal with situations such as OCSteve is alluding to.

I think you clarified it more in your last posting, OCSteve. If the government has good reason to consider someone a threat, but cannot disclose, for security reasons, that information in a regular court, is there another option which allows for a fair hearing, with all relevant evidence being submitted, without jeopardizing security issues?

This is a legitimate question, and the fact that soemone is asking it and trying to figure out how to do it does not make that person want to live in a police state, nor even be willing to do so.

I think OCSteve has made every effort to point that out. Granted neither he nor I have the gift of language that hilzoy or Katherine or many others here have. And perhaps different words may have been chosen at times.

However, I think so many people are afraid of a police state occuring (perhaps with some justification) that they see any leaning in that direction (even as negligible as OCSteve's) to be representative of a major danger.

And trust me, if some appropriate solution is not discovered, that ensures maintaining rights of the suspected and accused (not the same)and an attack occurs where someone involved was let go previously, the willingness of all too many to live in police state for protection will become evident.

And that scares me more than a potential attack.

[J Thomas]

OCSteve, thank you. You don't want the government to be able to lock people up on the basis of "trust us". You looked for a way for the government to lock people up while keeping its evidence secret, and didn't find one. Any way the government locks people up on secret evidence amounts to "trust us".

You say that increased surveillance is all that's left, and it takes too many resources. I proposed an alternative.

My suggestion is that at some random time after we get evidence that somebody is a conspirator, we contact him and offer him the chance to become a double agent. If he says no, just let him go. Provided he believes we have evidence and aren't just randomly inviting people we vaguely suspect, then he becomes a danger to his organisation. Making contact is always dangerous, now it's very dangerous. He endangers every agent he contacts, because he has to assume he's been found and is under increased surveillance. If he decides he's now useless and leaves the country, we win.

The only way we lose is if he has a communication method so hidden that we don't find out about it. He stays here doing nothing we can see, we waste time watching him, then the word comes in and he does something drastic that we're too late to stop and there's a leak that we already knew about him.

However, it's very very stressful being a covert agent in a foreign country, and we'd have a very good chance to get enough double agents to expose the secret communications.

Also, if we're watching a group at some point we can grab the whole group, and charge them based on evidence that doesn't expose our methods. Or say get them deported one by one based on things like false papers, that give no warning at all how we decided to research their papers instead of somebody else's. Unless we need to punish them for successful sabotage, it's enough to get rid of them and put them on a list of suspects for other countries.

Possibly the ideal case though, given a bona fide homicidal terrorist, is to get him bona fide psychotherapy. If he's muslim, preferably psychotherapy with a muslim therapist. So much nicer if he can be cured....

[Jesurgislac]

And as I should have said in response to your your 08:59 AM: okay, it's clear to me now that you're not calling for a police state, and I'm sorry I said you were.

(It sure sounded like it for a while there, but I'm glad to have it cleared up.)

[Pam Toll]

I have always thought there needs to be some kind of intervention, but i dont think the usual justice system is made for the terrors of war and terrorism.. I think there should be designs on a new strategy in trials.. but still give the person a chance to have their say. Remember alot of the statements were extracted under torture..so the testimony charged .. cant be reliable. When and where is the evidence of participation..? and why did the US wait so long to address this..
I know richard reid is in a federal pen and I wondered if he was testing the new homeland security laws or really trying to blow the plane.. Seriously as a witnesses to a terror cell I think the terrorists are the corrupted govt and police officals who PRETEND THEY KNOW what they are doing.. look at all the civilians in city prisons that are tortured and terrorised by this CURRENT JUSTICE SYSTEM.. how does a FAKE JUDGE AND PROSECUTOR GET TO JAIL A REAL WITNESS TO a terror cell.. IM ASKING LARRY KERRIGAN.. howd ya get BEHIND JUDGE MCCOOEYS BENCH? and howd you get me in the jail bus and keep me there.. even though the charge wasnt jailable?
pam toll park forest il usa