With the news that AG John Ashcroft has resigned, there is much chatter about whether in the interests of national security he trampled on legal protections.
I was watching Newshour the other night and they had two guests who were both law professors. They were selected because they had different views of Ashcroft's tenure. Both sides sounded authoritative and factual. Who is right?
I don't know.
All I can do is blog as ordinary Joe Citizen who has no legal background and can only apply some common sense.
There is no doubt that terrorism imposes incredible challenges to the legal system because it falls outside the realms of established law.
In the USA, we have firm principles for criminal law like (1) when you detain someone you have to soon afterward charge them with a specific crime (I don't know how much time you have... I guess I haven't been paying enough attention while watching Law and Order) (2) when you put someone on trial you have to prove guilt beyond a reasonable doubt.
In the international law, there appears to be some principles for the conduct of war. Soldiers wear the uniform of a specific government and if captured on the battlefield are held as prisoners of war where there are certain requirements. These POWs are held until the war is over and returned to the nation they fought for.
Now, we face the challenge of terrorism.
These people can be detained by law enforcement in the USA and in other nations or by military personnel on battlefields. So are they POWs or criminals?
They usually aren't wearing the uniform of any government.
How long do you hold them?
A traditional POW is held until the end of the war but when is the war against terrorists over?
Though they may hold some state's passport they really can't be returned to that nation because they can return to being a terrorist.
Do we treat them as criminals?
If we detain them, how quickly must they be charged with a crime?
How many "things" must a person do before they could be charged with "conspiracy to commit a terrorist act?"
Does talking about it to someone constitute a conspiracy?
Does surfing the internet for information constitute a conspiracy?
Does buying equipment that could be used constitute a conspiracy?
I'm not a lawyer but how about this hypothetical:
Mrs. Smith says she wants her lying cheating husband dead. Is that a crime?
Mrs. Smith surfs the internet for guns. Is that a crime?
Mrs. Smith buys a gun. Is that a crime?
As far as I can tell, Mrs. Smith hasn't yet committed a crime?
How about this hypothetical:
A group of people discusses a terrorist plan. Is that cause to detain?
A group of people surf the internet to get maps for their target. Is that cause to detain?
A group of people go to a school to be certified to drive 18-wheelers. Is that cause to detain?
The greatness about the US legal system is that we will work it out. Yes, the Bush administration clearly pushed the boundaries on what to do and I'm hoping as time passes we will find the right response to balance national security and legal protections.
Clearly the bar is lower than "beyond a reasonable doubt" because the cost of being wrong could be another World Trade Center attack or some other kind of nightmare scenario.
How quickly will our legal system figure out that maybe somebody got detained because their name sounds too close to a known terrorist?
Or the person didn't know that the people they were associating with were terrorists?
Its tough and I'm glad we live in a country where these things can be hashed out.
In totalitarian countries, they just detain and throw away the key or detain, torture and clear out space with a bullet.
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