Scott Fenstermaker attorney for the 9/11 terrorists on O'reilly

[Adam-12]

I am not in favor of giving these people fluffy media circus trials in cream-puff civilian courts in the US.

If that's an accurate description of the American justice system, then something is wrong with America. But I don't think it is. When some right-wingers say that sort of thing, they really mean that civil rights are themselves the problem. For them, not being allowed to force people to testify against themselves (water-boarding, anyone?) is just a roadblock in the way of justice. I don't agree with that.

Tell me please: what would be wrong with conferring the Bill of Rights upon every living human being on the planet?

I'm 100% in favor of that! I think we should start with the defendants.

Should not every person in the world enjoy the right to disagree with their government, defend themselves against attack, confront their accusers in a court of law in front of an impartial jury...

With you all the way.

I think it's despicable what these people have done and they are the lowest form of life there is, but just the same, I would sleep better at night knowing that they were convicted by court of law and deprived of their lives after due process, than if we just took them out back and stoned them to death in a vat of boiling acid.

That's good to hear! I'm with you 100%. Assuming they're guilty, of course, which I basically do assume.

Maybe I'm doing a 180 to some degree here, but I think the world would be a very different place if people everywhere enjoyed the same freedoms that we do.

I couldn't say it better. Good stuff!

[Adam-12]

There is legitimate evidence that had been collected as well as a confession given freely prior to enhanced interrogation that should also be thrown out because he was never Mirandized...

Miranda v Arizona isn't even in the Constitution. You've brought that particular point up a few times, and I have no idea whether it's even relevant to these trials, because I have no idea whether there even were voluntary confessions given without torture. If there were, they're not automatically out based on the magic words in Miranda v Arizona. That's a TV thing.

... and evidence collected by covert operatives will never meet the standards of our criminal courts.

I have no idea whether that's true or not. There's no obvious reason to assume it.

Not to mention some of the evidence had been collected by foreign covert operatives further obscuring the ability to effectively present/challenge it in a criminal court of law.

There may be some difficulties of that sort. That's the nature of the beast; the right to confront your accusers is one of our core values, and it means that some things don't qualify as evidence. Again, however, there's no reason to assume that this is the case, and certainly not that it's enough to cripple the prosecution.

... none of us know what the Founders would have said.

We do know what they DID say. They didn't mumble or anything.

... I am somehow not worthy of citizenship?

Actually I was still spoofing the bloodthirsty neocon rhetoric; I wasn't seriously claiming any such thing--and certainly not about you. Sorry about that. Now, next time Glenn Beck or someone babbles about "blame America firsters" or "America haters," remember the angry "Fuck you!" you sent my way, and notice what an asshole he's being.

[DonSmithnotTMD]

You're taking a weak-kneed liberal stance here. What if they weren't apprehended by our military, and they weren't on the field of battle? The scumbags getting fair trials they don't deserve weren't caught by our military, and they weren't caught on the field of battle:

• Khalid Sheikh Mohammed - Arrested by Pakistani intelligence officers
• Ammar al Baluchi - Arrested in Karachi, Pakistan, by Pakistani authorities
• Walid bin Attash - Arrested in Karachi along with al Baluchi by Pakistani authorities
• Ahmed Ghailani - Arrested by by Pakistani authorities
• Ramzi Binalshibh - Arrested by Pakistani intelligence
• Mustafa al-Hawsawi - Arrested by Pakistani authorities

I hope you won't advocate fair trials for them just because they were arrested by the Pakistani authorities far away from any field of battle? Murdering foreign scum aren't entitled to any of our American justice, and the fact that they managed not to be caught by American soldiers shouldn't change that.

So it's a miracle we got custody of them at all.

What's wrong with this?
http://en.wikipedia.org/wiki/Military_tribunal

I guess in a pinch we could follow every extant international agreement and not take any prisoners at all. Then there wouldn't be any controversy.

[Roscoe]

So it's a miracle we got custody of them at all.

What's wrong with this?
http://en.wikipedia.org/wiki/Military_tribunal

I guess in a pinch we could follow every extant international agreement and not take any prisoners at all. Then there wouldn't be any controversy.

Lemme guess Ob doesn't get any points with his Muslim brethren.......

Sorry for being a smart ass....Don

[rodder]

(paraphrased) Everyone deserves a civil trial, foreign combatant or not (paraphrased)

The problem with trying these assholes in a civil trial is the precedence it will set.

Have you read this article? Trying them here in a civil court puts our entire justice system at risk.

http://chicagoboyz.net/archives/10193.html#more-10193

<snip>For over two hundred years, those captured by the military outside the civil boundaries or caught carrying out military action on US soil, were tried by military tribunals. Up until the 1950s the military used drum head trials to convict and execute those found fighting in violation of custom and international law. Pirates were often hung at sea within hours of their capture. In WWII, anyone fighting disguised as a civilian faced summary execution with the approval of just three officers.

For over two hundred years we were careful to keep a firewall between civil and martial law. We did so because civil and martial law are polar opposites. Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.

Now, Obama wants to bring martial law into a civil court room in Manhattan. In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.

They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.

Even if the courts throw out his conviction, the government will never allow him to go free, so we will toss out protection against double jeopardy if they try to convict with a military tribunal, and toss out the right of no imprisonment without trial if they don’t.

Our system of justice relies on precedent and equality of procedure. The same rules apply to every civil trail. We can’t say that it’s okay to deny the right against self-incrimination in one person’s trial while saying it’s okay in another. If the courts overturn the rights of one individual accused, it must overturn the rights of all of them.<snip>

[wa3ra]

The existing case law, from the SCOTUS in 1942, provides these people with NONE of the protection of a US Citizen. They are to be tried by a military tribunal in order to protect the intelligence gathering facilities and assets.

They are enemies of the United States, and they do not deserve the very same rights that they would use to strangle us.

[jcabin]

Who's responsibility is it to ensure their safety in tranist?

The US supreme court has ruled that the LEO's of this nation are not obligated to save the life of any american citizen.

Perhaps when they assign our LEO's to protect these foreign citizens, they can also choose not to protect their lives. As they cannot be obligated by our laws to save the foreign citizens lives' as well?

So when they walk, they will be walking to their certain death.

[pyld]

They can still get Due Process of Law in the Military Judicial System under which they SHOULD be tried as the perpetrators of an act of war.

Can't call it war. We tortured them. Geneva convention, and all.

That's good, because he got a fair trial, where he was found guilty in a civilian court in 2007.

Not that it matters (I think Padilla is guilty any number of things) but his conviction offers two things to think about:

1. There is no chance in the world that the 9/11 plotters won't be at least found guilty of conspiracy, even if any evidence from Cuba is not admitted.

2. The government, under current statute, can essentially prove that anyone, doing just about anything, was part of a "conspiracy" to commit terrorism.

I would like those clamoring for a fair trial to think about the implications of this trial should evidence that exists, but does not meet evidentiary standards for our criminal courts be admitted.

See above. They convincted Padilla on a conspiracy charge with nothing but evidence of a trip to Afghanistan (not what he actually did) and being Muslim. The 9/11 suspect will be a slam dunk.

(I don't want a trial, BTW--if GWB had half a brain he never would have taken custody of these assclowns).

[GunLawyer001]

Once the government decides to try a defendant in civil court, the system requires that at least 1 attorney represent him.

Blaming the lawyers for refusing to pick up a pitchfork and torch and storming the windmill along with the rest of the villagers, shows a failure to understand the adversarial system. Might as well blame the nurse who swabs the condemned prisoner's arm with alcohol before the lethal injection. Defense counsel are an indispensable part of the process. Without a defense, then guilt will be unilaterally decided by Obama appointees. Anybody here feeling comfy about that idea? Rich capitalists? Gun owners? Judgmental conservatives? Anyone?

That being said, we can't fight a war using the civilian courts. Not even using RICO.

Could we have stormed the beaches of Normandy using civilian police, armed with Colt Police Positives and handcuffs? Could we have intercepted the Jap radio traffic and outmaneuvered them at Midway if we had to get wiretap authorizations for each message? Can we win a battle if we have to give each sniper Substantive Due Process and effect a lawful, Mirandized arrest, or can we just shoot the bastard out of his cave?

In every war that we fought and won, we threw captured, uniformed enemy soldiers in prison until the war ended. Enemy soldiers in civilian clothing were executed. We could not possible have stopped Hitler and Tojo if we had to individually try every captured enemy soldier for "crimes", or else release them so that they could fight us again tomorrow. And forget about dropping a bomb on an enemy stronghold, you'll need to identify each soldier first, serve them with notice of the trial, meet the Supreme Court standards for capital punishment, then allow time for the appeals; it's just possible that they might not wait there until the process is done.

When your enemy chooses to bring the battle to your home turf, he doesn't (or shouldn't) gain the advantage of soft, civilian crime-fighting rules. How the Hell is that not an incentive to target our civilians? That's like telling American criminals, hey, if you use a gun, all crimes are automatically downgraded to summary offenses, and you get to remove 2 of our witnesses at trial; my guess is that it would ENCOURAGE our criminals to do what we'd prefer they didn't do.

At the very least, all captured enemy soldiers should be imprisoned until the war is over. Since they chose to fight for a supranational, un-centralized organization, the formal cessation of hostilities is likely to be delayed.

[rodder]

hey Gunlawyer, what's your take on the article I linked to a few posts above yours? I'd be interested to get the opinion of someone educated in the way the law works here.