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Re: More questions than answers


Reviewing this debate, it seems to me that one of the underlying drivers
for our dispute is the concern by many Americans that our judicial
system no longer works very well.  (In my view, our international
cousins are largely unaware of these problems, since their news readers
prefer to focus exclusively on juicier legal items such as executions in
the state of Texas).

In America's concern to ensure justice, we have liberalized our judicial
system over the past thirty years, introducing televised proceedings,
changing the "rules of evidence", and vastly increasing the numbers and
powers of trial lawyers.  In effect, we have shifted the scales of
justice toward defendants through tighter restrictions on the police,
and looser constraints on the behavior of trial lawyers .

It has been said by knowledgeable jurists that it is now virtually
impossible to get a conviction in the US if a defendant sees a lawyer
before arrest and questioning by police.  Today, most convictions are
the result of confessions; unsurprisingly, few criminals will confess
with a lawyer at their elbow.

When the defendant happens to be wealthy, then the US system virtually
guarantees that the defendant will walk free, even in the presence of
massive evidence.  The OJ trial is the most notorious example but there
are thousands of others.

Our legal system was set up to mete out domestic justice, and barely
works on a national basis these days.  In a trial of accused
terrorists,  much of the evidence against them will be obtained
internationally where "Miranda warnings" are unknown, search warrants
have not been issued, and legalistic uncertainties cloud the evidence.
Under those circumstances it will be impossible to obtain convictions.
The bottom line is that to try these beasts in American courts virtually
guarantees that justice will not be done.

To nail them, we will be forced to reveal intelligence gathered by our
espionage networks, thus rendering parts of them useless in the future.
For example, during the trial of the last bunch of would-be twin tower
bombers, in order to convict them we were forced to reveal that we could
monitor bin Laden's satellite phone calls.   After the trial, he never
used those systems again.  Had his usage continued, we might have
averted the 9/11 attacks.

Fundamentally, if you care about justice, it is far more likely to be
meted out in a military tribunal where evidence obtained from foreign
sources is admissible, and grandstanding trial lawyers can't run the
show for the benefit of the TV cameras in the courtroom.

Will verdicts by military tribunals be accepted by Islamic militants?
Probably not, but then again, they probably won't accept verdicts by any
American court, (if the twin towers bombing case is any indication!).