Sources and Methods

This I think is an example of why polarization is bad. There's this ongoing dispute about just what species of kangaroo court were going to bounce our guests in the internment camp we have in Cuba through. Part of that argument is whether they should be allowed to hear things like the charges against them, hear the evidence against them, or to confront their accusers - you know, all that constitution stuff.

For a very long time the whole "detainee" thing has bothered me. It seems that people are either criminals or POWs and that both of those groups have rules associated with them. Criminals in US custody get the full protection of the constitution. POWs have the Geneva Conventions. Calling people "detainees" clouds the issue nicely and lets you do pretty much anything you want, and I cannot believe it has taken until now to really force a discussion in the halls of government.

Policy really ought not be executed through semantics. It isn't the word you use that is important, it's who they are and what you're doing with them. "Detainee" is slimy, fineprint, doublespeak; Newspeak."

But.

I can see genuine reasons why, during an active conflict, with assets in the field it could be reasonable to not put all the information available into the public record, or for that matter even into a sealed record that includes a defendant and their attorney (do they even get an attorney? Question for another day.) The random gamesaying of contradictory position which has become our public discourse doesn't really allow for this middle of the road, reasonable, position though, and that's sad. We should be capable of assessing and responding reasonably to a situation as opposed to simply regurgitating whatever the dogma of our particular group might be.

When in a criminal or civil case within our normal court system some evidence is in question because it may be unduly prejudicial or because it may irreparably harm third parties there is already a work around in place. Sometimes a judge will evaluate the evidence in chambers before ruling on its admissibility. Sometimes records are reviewed by a special master. Surely there must be a way a similar work around could be implemented in this case.

Clearly the judge is out of the question. In a military tribunal I don't think it would really pass gas to have the military decide what evidence could be in or out. So it must be more complicated than that. And there's another issue, yes? We're not talking about admissibility in this case, we're talking about revealing the information or not. Quite different.

I submit that if we are the United States of America then we cannot try someone in any government backed court, military or otherwise, without their being able to hear the evidence against them. Period. That's just who we are, to do something different would make us some other people - people we should not want to be. Something would need to be done however because I also believe that if we are the United States of America we do not hold individuals indefinitely without a trial.

And God help us if we aren't the United States of America.

How about this. In the time of a declared war people being held in the name of national security, but who are not part of some standing army and are not represented by any national government may be held for a given period without review. Lets qualify that further and say that these people must be non-US citizens, and that US citizens may avail themselves of the criminal court system immediately. Want to hold them? Charge them with treason. We need a period, I am suggesting 6 months. The United States may hold non-nationally aligned national security risks for six months without further action.

After six months they must be charged with something and allowed discovery to prepare for a speedy trial. Speedy? Maybe another 6 months. This would mean that nobody would be held for more than 1 year without initiating a trial.

So far so good. But what about where we started, sources and methods? At the time of the beginning of the discovery period, the end of the first six months, the government may move for a six month extension of detention with no action in order to protect active sources and methods. I imagine they would have to be able to do this repeatedly. Its hard to figure out what that period should be, but I think it would be fair to say that the life of a secret source in this context is likely not more than 3 years. Really for me it is difficult to imagine a conflict dragging on for three years, but Afghanistan and Iraq are going to re-educate me about that I think. So, 5 appeals for extended detention without action in the interest in protecting sources and methods vital to national security. After 3 years, you get a trial or they let you go. And I have to say as a citizen of the United States of America I think that is too long, but I will make allowances for the fact that we are at war.

Who hears the appeal? We ruled out the presiding judge earlier. This is a special problem, we need a special solution. I propose a group, a seven person commission, judgment by majority vote. Panel members are: the US Attorney General, the Ranking Majority Member of the House and Senate Intelligence Committees, and the Ranking Minority Member of the House and Senate intelligence Committees, the Chief Justice of the US Supreme Court, and the Chairman of the Joint Chiefs of Staff. Now that's a high powered meeting. Proceedings are closed, ballots are secret, and records are sealed for 20 years. The prosecutor would present the sources or methods that are in jeopardy and the commission would determine if their release would or would not constitute a palpable injury to our national security. If they agree, the detention carries on with no action for another six months. If they disagree either the trial discovery begins or the prisoner must be released.

Am I being stupid? This doesn't seem like it should be too hard to figure out. It's not like there are thousands of these prisoners. I know this would cut into some pretty high powered schedules, but I am sure they all use some kind of collaborative scheduling program and could figure out a way to fit it into their lives. And then, then we can have "detainees" and have national security and have due process - and be able to sleep at night.