Recent reports have indicated that the Obama administration is having Miranda warnings given to some people who are detained overseas, such as in Afghanistan. Apparently, this is being done so that the failure to give a Miranda warning cannot be used as a reason to exclude from evidence in any possible criminal trial what they say while being interrogated. After this fact was disclosed, an administration spokesman said that the Bush administration did it, too.
A couple of quick comments. First, how can the Obama administration justify anything on the basis that the Bush administration did it? My recollection from the campaign last year is that just about everything the Bush administration was doing in the "war on terror" was evil and illegal and hurting us in the eyes of the world. I didn’t realize the rehabilitation of the Bush administration’s reputation would start so soon. (Sorry for the sarcasm. I couldn’t help it.)
Second, and seriously, am I the only one who thinks that giving Miranda warnings in Afghanistan is really weird? I am having trouble with the concept. And I am having even more trouble believing that the lawyers who wind up defending these people in court won’t find some way to claim that Miranda warnings given in Afghanistan aren’t really adequate – and that some judges won’t agree with them.
But while there was a bit of a brouhaha on the Miranda warning question, another interesting question has been pretty well ignored. The question is this: A number of detainees from Guantanamo Bay are apparently going to be bought to the United States for trial. What happens to those who are found not guilty? When the question was asked to White House press secretary Robert Gibbs, he refused to answer, saying "I’m not going to get into hypotheticals …."
Well, it might be a hypothetical question now, but it won’t be soon. There is no doubt that some of those brought to the United State for trial will be found not guilty. A combination of good defense lawyers, evidence that cannot be used at trial because it was "improperly" gathered (under U.S. criminal trial standards) or because its disclosure would reveal intelligence sources or methods, plus the inherent uncertainty of trials means some of the detainees will be found not guilty. So what are we going to do with them?
If they aren’t released (and I am not just talking about releasing them in the United States, I am talking about releasing anywhere), wasn’t the trial a sham in the first place? If it was arbitrary to hold them without a trial, isn’t it even more arbitrary to hold them after they have a trial and are found not guilty? How will the world react if we continue to hold them in that case?
On the other hand, a reply to a blog posting about this situation, said that of course we have to try them. We didn’t just take the Germans out and shoot them after WWII. We had trials at Nuremberg.
But that comment misses both (i) the difference between what we did at Nuremberg and what we are doing here and (ii) the difference between today’s situation and the situation back then. First, the Nuremberg trials dealt with only a small fraction of the German leaders, a few at the very top. The trial of those held at Gitmo would appear to include a lot more people than just that.
More importantly, however, the Nuremberg trials were held after the war was over. The defendants who were found not guilty could be released because they weren’t a danger to us any more. The war was no longer going on. They couldn’t go out and start fighting us again.
That is not true with the detainees at Gitmo. The war (or battle or whatever you want to call it) is still going on. If they are released (and I do not see how they cannot be released if they are found not guilty), there is a good chance they will go out and fight us again. It would be as if we had held the Nuremberg trials in 1943 and those who were found not guilty were released so they could rejoin the German war effort.
Let me mention one other question which makes me wonder whether people have fully thought through the consequences of trying detainees in the American criminal court system. An important part of the American criminal system is the level of proof it takes to convict somebody: beyond a reasonable doubt. We all know that standard from the crime shows on TV, but I wonder if we realize how high that standard really is. It has been said, in explanation of that standard, that it is better to let ten criminals go free than to convict one man wrongly. (See here.) Others would make the number higher. It is the right standard for our domestic affairs. But what about terrorists out to kill us? Are we willing to let ten, or more, terrorists go free to avoid holding one person wrongly? I understand that it is not right for an innocent person to be held in custody for being a terrorist when he isn’t. But what about all of the innocent people who may be killed by real terrorists who are turned loose because they could not be convicted under a "beyond a reasonable doubt" standard? Not an easy question, and one I hope people are actually thinking about.
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