Why Not Just Kill Them?

Yesterday, President Obama proposed a legal scheme for "indefinite detention" of alleged terrorists. His argument, as I understand it, is that we are holding some people who, for one reason (torture) or another, cannot be convicted of a crime, but who are nonetheless "too dangerous" to release.

So here's where we stand. Some of the alleged terrorists will be tried in Federal Court and/or in Military Court Marshall proceedings. These are the individuals against whom the government has strong and untainted evidence - they are the individuals that the government knows it can convict pursuant to a fair process.

Other alleged terrorists will be tried by Obama's revived system of "Military Commissions." In these tribunals, the rules of evidence will be relaxed to allow hearsay testimony - testimony regarding what a (not present) third party allegedly told the witness about the defendant's actions or representations. Granted, the presiding judge has to be convinced that the testimony is "reliable." But the existing federal rules of evidence already contain exceptions for hearsay testimony derived from circumstances giving rise to the inference that the testimony is reliable. Compromising these carefully contemplated rules can only serve one purpose - to ensure convictions that cannot be obtained pursuant to a fair process.

Think about this for a minute. The hearsay exclusionary rule is premised on the Sixth Amendment right of the accused to confront all witnesses against them (hearsay constitues testimony from witnesses who cannot be confronted by cross examination). President Obama, in reviving the Military Commissions (which provide a fairer process than the commissions envisioned by the Bush Administration), is admitting that there are a class of detainees whom we cannot convict pursuant to rules that embody constitutional protections. His solution is to set up an alternative process that partially exchanges the rule of law (Sixth Amendment based protections) for the rule of men (the discretion of officials who ultimately answer to the executive himself) to insure that we convict these people.

Okay . . .

But now Obama has gone even further. He is claiming that there are some people that the government "knows" are dangerous, but whom it cannot convict even when the rules of process are relaxed below traditional constitutional standards. For these people we need a scheme of indefinite detention with only minimal process - a committee meets once in awhile to review its own previous determination that an individual is "dangerous" (not that they have actually committed any crime - just that they are "dangerous").

Wow!

I've got to tell you that I'm pretty tired of protesting that this kind of stuff is un American. I'm tired of hearing government officials arguing that we should set up different levels of process, the obvious purpose of which is to insure (in advance) that the government will prevail and that the executive will be allowed to detain and imprison anyone it wants, on its say so alone.

To hell with it. Forget half measures. The Fifth and Fourteenth Amendments to our constitution supposedly protect all persons falling under American jurisdiction from deprivation of "life, liberty, and Property" without "due process." If we're going to ignore (or manipulate) the "due process" requirement in so far as it protects liberty, why not ignore the due process requirement in so far as it protects against deprivations of life?

Shoot the bastards and be done with it!

Wait. I'm sorry. I misspoke. Our slogan should be "shoot those individuals whom the government claims are bastards, but only after they've received the level of process that guarantees that they will be officially convicted as bastards."

That's the American way.

Joe H.