Two questions on Federal Courts vs. Obama's New Modified Military Tribunals

[Old Hank]

If evidence obtained by torture has now been barred by President Obama's from the old system of Military Tribunals, then why not try these suspects in Federal courts? Wasn't this the accusation made against Federal courts in the past?

And why didn't the alleged flaws in the Federal courts keep us from convicting the shoe bomber (Richard Reid), Jose Padilla, Ali al-Marri, John Walker Lindh, and Zacharais Moussoui?

[The Magistrate]

1. One Possible Legitimate Reason, Sir

Is question regarding jurisdiction. Not all persons held are charged with acts that fit easily into characterization as violations of U.S. law. The cases you mention are all pretty clear-cut regarding the applicability of U.S. criminal law, having occurred on U.S. territory or property or involving U.S. citizens. One well-publicized case at Guantanamo concerns a person not a U.S. citizen, who was not on U.S. soil when he engaged in an act of violence against U.S. soldiers the U.S. government considered to be crime of war. It is hard to construct an interpretation of law bringing that under domestic criminal codes. A case like that is, under the Geneva accords, to be tried by a military court convened by the captor power. Such a military court, however, to be legitimate under that treaty, must be comparable to the court that would sit to hear charges against a member of its own military. The procedures established by the Bush administration for such courts clearly did not meet this test; the procedures promulgated recently by President Obama might well meet it, though whether they do or not is at present certainly open to debate. It is likely the matter will be litigated through the Federal courts, and we shall see what rulings issue.

[FrenchieCat]

2. Any Detainee who could be found to having been tortured or coersed at this time

would be acquited if tried in Federal Court due to precedence in our law books that
specifically deals with this issue.

That would mean that Federal court trials would be nothing but a show trials,
and could only be called "just" if the prisoner was let go at the end.

Do have a trial already knowing the outcome would make us a bigger joke than we already are,
and would bring in a Republican Majority in congress when they had all but been written off.

not trying to spam, but.....

Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate.
Snip

This is true both in federal courts, which operate under the Federal Rules of Evidence, and military courts, which operate under the Military Rules of Evidence. Both the Fifth Amendment's right against compulsory self-incrimination and the 14th Amendment's guarantee of due process preclude the use of a defendant's coerced statement against him in criminal court. In addition, any evidence gathered because of information learned through torture (sometimes called "derivative evidence") will likely also be excluded. Furthermore, the Supreme Court suggested in its landmark Fifth Amendment case, Oregon v. Elstad, that it might exclude evidence gathered after the use of any coercion, regardless of attempts by police and prosecutors to offset the coercion with measures like a Miranda warning. If Mohammed were prosecuted, and a court followed the line of reasoning set forth in Elstad, he might well see the charges against him evaporate entirely for lack of evidence.
http://www.slate.com/id/2100543 /

[Old Hank]

3. Thanks. What about court martials

governed by the Uniform Code of Military Justice? Would a detainee be dismissed simply because he was torture as well?

[FrenchieCat]

5. It appears so.

That's why I think Obama's choice is the best out of a terrible situation.

Things could have been different,
but there is no right to undo Bush's wrong going back 7 years in this case.
There is no True Democratic Justice, only something kinda of sorta as close as
one can get under the circumstances.

The whole situation is a lose-lose that was put on Obama's doorstep, both politically,
and in the name of justice.

I do believe though that we are talking about only 25 or so cases.
The rest of them will be let go to their country of origin ....sooner than later.

But yeah....this shit ain't pretty, even if folks making demands here at DU and elsewhere
think that it is a no brainer. It actually does require a brain to make the right call
for all concerned.

[Old Hank]

6. What do you mean "it appears so"?

I'd like to see confirmation that Federal Courts and the Court Martial system toss whole trials due to the fact that the accused was tortured.

[FrenchieCat]

8. I am not an attorney certainly......

Both the Fifth Amendment's right against compulsory self-incrimination and the 14th Amendment's guarantee of due process preclude the use of a defendant's coerced statement against him in criminal court. In addition, any evidence gathered because of information learned through torture (sometimes called "derivative evidence") will likely also be excluded. Furthermore, the Supreme Court suggested in its landmark Fifth Amendment case, Oregon v. Elstad, that it might exclude evidence gathered after the use of any coercion, regardless of attempts by police and prosecutors to offset the coercion with measures like a Miranda warning.

Oregon v. Elstad
http://law.jrank.org/pages/12965/Oregon-v-Elstad.html

FEDERAL RULES OF EVIDENCE
http://www.law.cornell.edu/rules/fre/rules.htm


Here's a case that was actually conducted by military tribunal under the old rules at Gitmo back in August-
http://www.alternet.org/blogs/rights/94126/gitmo_alert:_bin_laden's_driver_acquitted_of_serious_charge,_found_guilty_of_another/

[Old Hank]

10. Right. But Obama's new system would also bar evidence obtained by coercion

Or not? If so, there would be no difference between this system and the old standards when it comes to torture-tainted evidence.

[FrenchieCat]

11. Yes....my understanding is that it would.

However, the fact they one may have been coerced wouldn't predicate an automatic acquital, and there lies the difference.

[Old Hank]

12. But you are wrong in implying that Federal Courts automatically acquit tortured people

Where did you get that information? Isn't it only the case that confessions given during torture sessions would be excluded in federal court? Wouldn't all other evidence count?

[pocoloco]

4. Couldn't that same argument be also used against the

Military Tribunals? Evidence gained from torture allowed??

[FrenchieCat]

7. That's why this is a complex situation that does not have a simple answer

as some would insist.

The constitution and supreme court precedence are not as involved in Military Tribunals.

Recall that Washington, Lincoln and FDR all used tribunals....
the problem is not so much the tribunals,
it is the fact that they are happening 7 years too late,
and after much has been endured by the detainees.

The entire issue is an underestimated giant pile of shit that
Bush gifted this President with.

Obama cannot wave a magic wand. He cannot undo what was done.
That's what folks miss.
There is no real justice for these folks,
only this President trying to try and get it as close as possible
without him committing political suicide.

(this article was written in May of 2004)
As a nation, we still haven't clearly decided whether it's better to prosecute terrorists or pound them with artillery. But by torturing some of al-Qaida's leaders, we have completely undermined any efforts to do the former and irreversibly committed ourselves to a martial plan of justice. In the long run, this may be counterproductive, and it will show that we have compromised such liberal, democratic ideals like adherence to the rule of law to counter terrorism. Torture and tribunals do not help America show that it believes in the rule of law. But if CIA officials continue to use tactics that will get evidence thrown out of federal court, there will increasingly be no other option.
http://www.slate.com/id/2100543

[TexasObserver]

9. Yes, President Obama's position on this is very disappointing.

He's not showing courage in dealing with these issues, and it's a big disappointment.

In answer to your question, the suspects could be tried in federal courts, but the truth is they don't really have viable crimes with which they can charge these guys. They had evidence of specific criminal intent and misdeeds (allegedly) for the men you mention. They don't have that for the prisoners they've been holding for years.

Don't believe anyone who tells you the problem is procedural. It's not. It's evidentiary. They couldn't prove these guys are guilty of anything, in most cases. Fighting an invading army is not a crime.