posted
1) The government can request information to build a case against someone in complete secrecy.
2) If that someone is suspected of being a terrorist, the arrest is handled by a military tribunal and is placed under a gag order. Whether this can be done to civilians or not is still being determined, as well as what kind of evidence can be made available to counsel.
Combined, these seem to make it reasonably easy to "disappear" someone.
Posts: 37449 | Registered: May 1999
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posted
1 is only necessary to 2 if 2 is not a complete and total sham. And since I'm still unwilling to assume that EVERYONE in the Justice Department is evil (*grin*), I think 1 remains a useful tool in that regard.
Posts: 37449 | Registered: May 1999
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posted
I think the when its contested bit was a considerable sidettrack to the actual issue. The Justice Department has said its possible to contest it before the FISA court. The FISA court rules prevent anyone who's not an agent or attorney of the government from appearing, so I fail to see how the ideas are not mutually contradictory.
Posts: 15770 | Registered: Dec 2001
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posted
If the justice department insists its possible to contest it, it would seem their responsibility to at least give hints as to how to contest it. This is, after all, a justice system that aims at protecting the rights of the accused, and if the accused (or others who wish to protect the association they've had with the accused, such as libraries) is given no clear avenue to contest that would seem to be an obstruction of those rights (even if not an impassable one).
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posted
1) Secret evidence is used to procure a warrant or subpoena.
2) The judge making the ruling to grant a warrant or subpoena hears the motion to quash after the fact.
3) The person who is the subject of the warrant or subpoena is not allowed to see the evidence, and presumably can't even choose his/her own lawyer. And, it appears, may not even be allowed to appear in person in front the court. Probably can't call witnesses either -- or they'd have to be individually vetted by the Atty General -- the person who presumably sought the subpoena -- or one of his direct reports ultimately, since the A.G. is the appointed head of the Justice Department.
4) The judges are not appointed by the A.G. They are appointed by the President. Who also appointed the A.G.
5) The judges sit inside the Justice Department. Presumably to protect the evidence that they see -- it never has to leave the building, I guess.
This reeks. I don't care when it was cooked up. I don't care if the furor over it it is happening now and wasn't really a big issue in 1978. I don't care that the ACLU might have a political motive for making a bigger issue of it now than they have over the past 4 years.
I want this court abolished and I want anyone convicted using evidence that was treated the way this court is set up to treat evidence released immediately with a written apology from our government.
Even if they ARE terrorists. This is not America.
This is someplace else.
And the people who think this is a good system are bigger traitors than anyone I've ever heard of.
Because they are setting up a system that goes against EVERYTHING this country was founded on.
And near as I can tell, Ashcroft is just plain nuts. Anybody who is seriously bothered by naked statues is a nut job, plain and simple. The man lacks perspective and should not EVER be given a position of authority. Let alone have a position where he can in any way control a process that involves "justice."
posted
OK, one of you propose a system to protect the integrity of secret investigations. Or admit, as Tom has, that secret investiagtions are right out.
posted
? As I thought my first post in this thread suggested a bit, I don't necessarily have an issue with a secrets court. My problem is with certain aspects of the PATRIOT act and more particularly with the justice department's assertions about the PATRIOT act that are not clearly true and seem intended solely to assuage concerns without providing any solid assurances (for instance in this case, I can't imagine it would be terribly hard to write up a quick "suggested approach" and some rules to allow it that would not violate the integrity of the secrets court in contestations of the PATRIOT act provision being discussed, with a note that they were subject to revision at will when practical experience was at hand).
Secret investigations -- that's a different thing altogether and you know it. You can investigate within the bounds of the current justice system and not have things leak out.
And if things leak, you punish the leakers.
But you don't set up a shadow justice system.
Sorry.
It might feel more efficient.
But it is wrong and we should not do it.
Posts: 22497 | Registered: Sep 2000
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Our society decided long ago that an open justice system that respected the rights of the suspected and the accused was essential to an open free society. We have known for 200 years that we paid a price for that openness. Law inforcement agencies have always protested against recognizing the rights of suspects and requirements for openness because they have always made it harder to enforce the law. Terrorism is not new in this regard.
But the cost to society of having a closed secret justice system is simply to great. The potential for abuse is collosal. Unless all the processes of our goverment are kept open to the people, there is no way that we the people can hold the government responsible. When the govenment is no longer responsible to the people, democracy is dead. Terrorism is a serious threat, but it is not a serious as the threats oppressive governments have posed to their own people.
[ August 31, 2004, 09:52 PM: Message edited by: The Rabbit ]
Posts: 12591 | Registered: Jan 2000
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posted
I just want to know how we can expect to have an open democratic society if the government has secret investigations in secret courts with secret evidence, subpoenas and warrants.
Posts: 12591 | Registered: Jan 2000
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posted
Tom, you're smarter than that. There are lots of criminals that can't be caught if they know how the police are investigating them.
And both Bob and Fugu have acknowledged the necessity for secret investigations; we're into how they should be conducted. And my question still stands - how can you have a secret investigation if you can't have secret warrants, subpoenaes, and evidence to support them.
quote:I just want to know how we can expect to have an open democratic society if the government has secret investigations in secret courts with secret evidence, subpoenas and warrants.
The evidence to support the warrant is secret - not the evidence used to convict. There's a significant difference.
posted
Secret investigations of the following types seem perfectly fine to me:
1) Clandestine observation 2) Undercover work 3) Wiretaps with standard judicial approval (i.e., not managed by a court where the evidence can't be shown to the accused or the accused attorney). 4) Covert recordings of individuals
All of these things are perfectly acceptable because the evidence, eventually, comes out in court and it is subject to scrutiny, expert testimony, rebuttal, and some standards are applied -- i.e., rules of evidence.
People accused based on such evidence still have the right to a jury trial, calling witnesses, rebutting the government's witnesses, etc.
Not so here.
And what this court means when it says "secret evidence" is evidence that the Government calls secret. So, the government says "no-one can see this, but it proves this guy over here is a bad guy."
The judge looks at it, and with NO STANDARDS TO UPHOLD, decides the case.
The accused has no means of appeal because the evidence cannot be subpoenaed. The judge who decided to give the warrant in the first place is the same judge who decides whether the motion to quash the evidence thus gained has merit. Like they're going to say "you know, we allowed that warrant, but we shouldn't have." Sure.
Dag, you are missing the point, I think. Keeping evidence secret until the person is charged and brought to trial is SOP and truly necessary. You don't go around telling people "I'm investigating you, act naturally."
But once the person is arrested, they have a right to know what the charges are, and to examine the evidence against them.
Except in this court.
In this court, the evidence STAYS secret. And if the accused TALKS about it, they can be put in jail for talking about that there even IS secret evidence.
By what stretch of the imagination is this possibly "right" in our Constitution or in our principles?
How can you NOT see this?
Posts: 22497 | Registered: Sep 2000
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quote:he evidence to support the warrant is secret - not the evidence used to convict. There's a significant difference.
Um, Dag, I'm afraid you haven't really been following this if you believe this statement to be true.
If the evidence is secret for the warrant, and the evidence they gather as a result of the warrant is classified as "secret" then it's all secret.
And you can't challenge the warrant and you can't challenge the evidence.
This is being done by your government today, not just here, but in military tribunals and in cases involving US citizens.
You may not believe it.
But someday the truth of all this will come out. And it'll be yet another shameful episode in our history. Where we let fear convince us that our principles could be suspended for awhile.
And frankly, even the bit about having the warrant be done in secret means that the defendant can't challenge the case on the basis of due process violations related to the warrant.
That in and of itself is a violation of our judicial practices and the rights of the accused.
posted
Bob, show me one case where someone is convicted of a crime based on the introduction of secret evidence that the defendant can't challenge. One case.
Everything the court does happens as part of the INVESTIGATION, not the trial.
Sheeeesh.
And Dag, you say it with me:
EVERYTHING THIS COURT DOES CANNOT BE CHALLENGED ANYWHERE BUT IN THIS COURT...
No right of appeal. No independent review. No oversight.
If I were on trial for my life and was told that I couldn't question the basis for the warrant that was used to gather evidence against me, I'd think I'd been moved to Communist Russia during Stalin's reign of terror.
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posted
You can't challenge a warrant executed against another person, ever. You don't have standing.
There is a right of appeal from this court.
And so far no one has shown anything that once the fruits of a warrant obtained from this court are sought to be introduced, the underlying affadavit doesn't come in. I know for a fact the government has excluded evidence, and even dropped charges, so as not to expose sensitive agents.
Any evidence used to convict has to be testified to or entered at trial and the defendant given a chance to confront it, or it can't be considered.
quote:Bob, show me one case where someone is convicted of a crime based on the introduction of secret evidence that the defendant can't challenge. One case.
1. It's secret...get it?
2. Anyone convicted based on evidence gathered as a result of a warrant arising from THIS COURT has been railroaded enough to make the point already.
The process of justice broke down at the beginning with an ILLEGAL warrant. So, if the warrant is bad, then any evidence gathered under that warrant is tainted.
You say this warrant would be legal because this court was established by laws. But it is illegal in the greater sense of being plain immoral and wrong.
So, you can have both answers to satisfy you.
Or not.
I can tell you about people who are in jail without trial in this country. Indefinitely. Well, okay, they may not be incarcerated on US soil, but we are holding them.
posted
Secret evidence, but not in a trial. Not related to this court. Not related to the Patriot act. Evidence that may not have been gathered with secret warrants.
Complain about this all you want. But know that it's not what you've been complaining about for 2 pages.
And you see the ACLU was there fighting that and the dozen or so others of a similar nature -- people jailed indefinitely without being able to see the evidence against them or confront their accusers.
I believe that if this happened 12 times under Clinton et al, it has probably happened 12 x 12 times under Bush et al.
And we aren't hearing about it.
Oh, but it's okay, those people are immigrants and don't have legal status.
WRONG!
They are human beings and this is America.
Posts: 22497 | Registered: Sep 2000
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It's the government using secret evidence to put people away while skirting our own laws and judicial traditions.
I guess you miss my fundamental problem with this. It isn't that this is happening in this court and nowhere else.
It is that it is happening ANYWHERE at ANYTIME within anything that purports to be a portion of the US Justice system.
If abuses are happening in one place, it destroys the entire thing... for me.
And I think the use of secret evidence in this court inside the Justice Department is bad. Immoral. Corrupt. And easily abused.
I believe the INS "process" is corrupt, immoral, bad, wrong, etc.
I believe if we fail to live up to our ideals when we are afraid or when we are challenged, then we have no ideals.
I believe our civilized country is a sham if we allow this to happen at any time under any circumstances.
So, whether it's a court established in 1978 and expanded under a provision of the Patriot Act or it's a "process" established in some government bureaucracy, I disagree with it.
And I want it to stop.
All of it.
It's all of a piece, Dag.
It's all the same thing. Government abusing people's rights in order to assuage the fear of the majority.
If we allow it, then we are just as guilty as our overzealous government.
And I don't want that on my conscience.
Posts: 22497 | Registered: Sep 2000
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posted
Fine. Then we either don't investigate certain terrorists, we pull agents out of the field, or we do things that can result in those agents' deaths.
My point is that it is possible to maintain secrecy without having all the negative effects you fear. you seem to think it's all or nothing.
posted
I prefer a government that errs on the side of upholding the principles we claim to aspire to.
There is no defense for this court inside the Justice Department if we are trying to live up to our principles.
(oh, and by the way, there is no route of appeal related to that court inside the Justice Department).
You can NEVER appeal based on the validity of the warrant.
Because you can only go into that court if you are approved by the Atty General.
And that court's evidence can't be brought to another court for review.
So, sorry Bud...at least THAT part of your right to confront the witnesses/evidence against you is out the window.
Posts: 22497 | Registered: Sep 2000
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quote:Fine. Then we either don't investigate certain terrorists, we pull agents out of the field, or we do things that can result in those agents' deaths.
My point is that it is possible to maintain secrecy without having all the negative effects you fear. you seem to think it's all or nothing.
You're the one who is saying it's all or nothing -- look at your first sentence above and then come back and accuse me of hyperbole.
Surely it must be possible to get a warrant the regular way?
Regular courts have ways of safeguarding the identity of undercover agents, don't they?
Sheesh!
Why this secret court?
Why the evidence that NOBODY in an adversarial relationship to the government's case is allowed to look at?
posted
Bob, there are situations where it's OK to have an affadavit signed by an undercover cop protected with normal secrecy rules.
Then there are situations where the mere fact the government is suspicious of someone could result in someone else's death. Greater safeguards than normal are needed in these cases.
posted
It would be nice to think we could learn from history and not need to repeat mistakes over and over again.
quote:However, as English law developed, the presumption of the open criminal trial did have at least one historical exception. For instance, in fourteenth-century England's Star Chamber, a strong presumption in favor of closed proceedings existed, and public access to any type of legal proceedings was not unusual. 53 The Star Chamber arose as a means of providing remedies for offenses beyond the scope of the common-law system. 54 The Star Chamber was an extension of the government; 55 it was not unusual, therefore, for the sovereign to attend, and his prerogative on administering justice regularly prevailed. 56
Originally associated with acts of treason, 57 the Star Chamber later became the predominant forum for criminal jurisdiction, particularly for those criminal issues that either could not be tried at common law or involved punishment unsuitable for common jury. 58 Vast abuses of authority eventually resulted in the Star Chamber's abolition in 1641. 59
Dag, the way I read it, the appeal is heard by the court that issued the warrant. And the Attorney General decides whether the person and the lawyer can attend.
If there's an appeal BEYOND that, how do they handle the review of evidence used to grant the warrant? Same way as in the FISA court? Or do they now open up all the evidence to the accused and the attorney -- i.e., unseal the classified documents?
Somehow, I doubt it is the latter.
Posts: 22497 | Registered: Sep 2000
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Dag, by the way, I really do appreciate you sharing your legal knowledge with us here. I'm not trying to be a crank. This issue has me ranting, I agree. But I think its importance goes beyond what is legal to what is right. And I think this thing crosses the line.
I do not EVER mean to impugn your knowledge or expertise, though. You clearly know whereof you speak and if I remain unconvinced it isn't because of some flaw in your logic. It's because I'm obstinate and don't follow the rules of debate when I see my government doing things that I don't like.
Oh well. I didn't mean to get snotty and I didn't mean to frustrate you -- if I did. I sense you can more than hold your own in an argument.
I have decided that John Ashcroft is a poisonous toad, though, and anything he touches, including this court, is for me forever tainted with his malevolent stench.
And that also includes the current administration. Any President that would leave that man in office does not deserve to remain in office himself.
posted
"There are lots of criminals that can't be caught if they know how the police are investigating them."
And you know what? We have always said, as a matter of American propaganda, that it is better to let the guilty go free than convict the innocent. Do we not believe this truism when it comes to, say, gangsters and terrorists?
Posts: 37449 | Registered: May 1999
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quote:And you know what? We have always said, as a matter of American propaganda, that it is better to let the guilty go free than convict the innocent. Do we not believe this truism when it comes to, say, gangsters and terrorists?
Hmmm. Interesting point Tom. You seem to be saying gangsters and terrorists are innocent.
posted
Until we convict them, they ARE innocent. Remember?
(Note: that bit of pith aside, it's worth noting that I was actually saying that it seems odd that we're willing to ignore the whole "better to let the guilty go free" concept when the guilty we're letting free are terrorists or members of organized crime. The reason this doesn't make much sense to me is that while the criminals themselves might be committing more serious crimes, the INNOCENT in these cases are no less innocent -- and it's their rights that we're worried about, right?)
posted
Please, Tom. That's disingenuous and you're smart enough to know it. You know the way you used "innocent" in the post above is different from the way it's meant in "innocent until proven guilty."
Otherwise, we coudln't convict anyone because no one is guilty until after they're convicted, so every guilty verdict would be convicting an innocent person.
Dagonee Edit: You added this:
quote:we're willing to ignore the whole "better to let the guilty go free" concept when the guilty we're letting free are terrorists or members of organized crime.
This reasoning is no better. This isn't a question of innocent being found guilty, it's a question of search and seizure protections.
You are willing to risk the rights and security of people who are neither terrorists nor gangsters to make it easier to arrest terrorists and gangsters. This is not a trade I am willing to make, mainly because I trust the government less than you do and am absolutely CERTAIN it will be abused.
RICO is used against pro-life protesters. Need I say more?
Posts: 37449 | Registered: May 1999
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posted
Tom, we disagree on both the risks to the innocent and dangers of not acting. It's impossible to reconcile.
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