I don't think anyone involved in the "let's try war criminals in civilian court" thing understands the law too well. That was pretty clear when Obama went ahead and declared we going to execute someone that we don't even have a jury for yet. Yay tainted jury pools

But I bet that Eric Holder, the nation's lead attorney, knows proper puncutation

/ two turntables and a microphone two commas and an apostrophe

Wow, that was pretty bad. I was waiting for him to say "In what respect, Lindsey?"

Nabb1: Even if the question on the applicability of Miranda on these cases is open (and I don't think it is - I think Miranda unquestionably applies)

Why? They are not US citizens nor are they on US soil, they are suspected military combatant who were detained by US Soldiers in a recognized war zone.

What I want to know is what why the hell you think our soldiers should be bound by the rules of engagement that police are. The very idea of what you are insinuating makes me want to puke. I suppose next you'll tell us how our soldiers need to properly announce themselves before engaging the enemy and have warrants in hand before searching suspected hideouts and bases of operation.

mattharvest: If we capture a terrorist on foreign soil and then remove him to American soil, when did those Miranda rights attach? Does it matter if we knew he was going to be brought to the US for a non-military trial yet when he was arrested? What if he's arrested for a military trial - which has greatly different rules of evidence - and then he is switched to a civilian court? What do we do with evidence already gathered?

I think there is a great deal of question, here.

I don't do criminal law, and am too lazy to do any research, but that's basically the crux of the issue: when, if at all, do the protections of the U.S. Constitution attach to foreign subjects in the custody of the U.S. govt? To what extent and under what circumstances?

IIRC, the whole idea of keeping enemy combatants at Gitmo was that this was a grey area. Initially, the Bush Administration took the position that enemy combatants could be held indefinitely, anywhere. The Supreme Court in Hamdi held that the defendant there (who was in the brig in Norfolk) was entitled to judicial review of his captivity. The case against Hamdi was weak, and I believe the govt just set him free, rather than risk a trial and risk being forced to turn over their intelligence sources.

The Bush Administration then took the position that foreign combatants were not entitled to any constitutional protections as long as they were outside the territory of the U.S. - i.e., at Gitmo. This was important because, for example, under the constitution you are entitled to confront your accuser. If enemy combatants were entitled to confront their accusers, then the govt would be forced to turn over the identities of the intelligence sources who provided the information that led to the combatants' arrests.

Obviously, the govt's position was controversial (to say the least). To short circuit habeas challenges, and prompted by the holding in Hamdi, the govt also set up the military review tribunals, which allowed detainees to challenge their captivity, albeit without all the protections of the constitution. This allowed the govt. to keep its intelligence sources confidential.

In Boumediene, the Supreme Court held 5-4 that U.S. sovereignty extended to Gitmo, and that detainees had habeas rights. The Court also held that the military review tribunals were not a sufficient substitute for habeas review.

Getting back to the issue here - Miranda - in 2000, the Court held in Dickerson that the Miranda rights were part and parcel of the 5th Amendment right against self incrimination. Previously, the Court had held that the Miranda warnings were "prophylactic" (i.e., not constitutionally required in and of themselves). Dickerson would seem to indicate that Miranda trumps any conflicting rules issued under the UCMJ, since the Miranda warnings are constitutionally based. Significantly, in Dickerson, the Court also held that Congress couldn't supersede Miranda by statute, which it had done by enacting 18 U.S.C. § 3501, which held that admissibility of statements hinged on whether or not they were voluntarily made (not whether the defendant was actually Mirandized).

There are numerous exceptions to Miranda, and I don't profess to know them, but the logical trajectory would seem to be that if detainees were not Mirandized, then anything obtained as a result of their interrogation is fruit of the poisonous tree, and inadmissible.

I think there are other problems with any testimony elicited from detainees (e.g., was it obtained through torture, and if so, how reliable is it?). But the Miranda issue seems to me to be a potentially huge pitfall for the govt.

mattharvest: Don't put words in his mouth: he didn't say that soldiers should be bound by the rules of engagement that police are. The way you use that phrase makes it clear that you don't quite see what the phrase "rules of engagement" mean, since they have nothing to do with Miranda warnings. Miranda warnings would only have to be given, if ever, when interrogation began. Moreover, they could only conceptually apply when the captured person was going to be tried in at least some form (as opposed to being held as a prisoner of war without trial).

Excuse me, the article was about the treatment of the Gitmo detainees and whether they should have been read Miranda rights and whether all enemy combatants will now receive civilian trials in the US. So I'm not getting how I'm putting words in anyone's mouth or taking anything out of context.

Holder dropped the ball. He's correct in trying the guy, but he dropped the ball -- like fool. It was painful to listen to this morning.

Subby sounds Racist!

We should set the precedent that the federal government doesn't have to give you a miranda warning when they arrest you. Only backwards racist hick states need those kinds of limits. The federal government is infallible now that the Democrats control everything; why should we limit their powers?

mattharvest: I think there is a great deal of question, here.

I don't think there is a great deal of question there, but I also think the AG should have had an answer that at least implied he had thought about it before.

I don't like what the Administration has decided to do here, but the vibe they are giving off right now that they have not thought this all the way though is troubling. Didn't we elect Obama in part to stop that kind of stupidity?

I'd post an epic facepalm pic, but hell. Why bother. We'd need a fleet of Picards for this.

ManRay: mattharvest: I think there is a great deal of question, here.

I don't think there is a great deal of question there, but I also think the AG should have had an answer that at least implied he had thought about it before.

I don't like what the Administration has decided to do here, but the vibe they are giving off right now that they have not thought this all the way though is troubling. Didn't we elect Obama in part to stop that kind of stupidity?

Sounding concerned is so 2008.

I fail to see what disaster will come from trying this guy in public court. That was an emotional argument I just read.

Should we be so quick to sacrifice American values for American pride? I thought we were supposed to be better than them. But no, some people want heads to roll.

OBL has likely been dead for years.

/Dead guys are mute
//Point is moot

Aarontology: It's some dumbass comment the President made.

Yeah - I'll go ahead and take the bullet on that one.

My bad.

3_Butt_Cheeks: I'd post an epic facepalm pic, but hell. Why bother. We'd need a fleet of Picards for this.



Or a thousand facepalm picard!

Not Available: But I bet that Eric Holder, the nation's lead attorney, knows proper puncutation

/ two turntables and a microphone two commas and an apostrophe

Yes, but Erik Holder knows' how to spell "puncutuation."

Is it Erik or Eric, or is he gonna get the Qaddafi/Khadaffi/Gaddafi treatment?

Give the brother a break. His ignorance is a result of the white man keeping him down.

Aarontology: Barakku: Yay tainted jury pools

Yeah, because it's not the destruction of the WTC that's going to taint a New York jury pool. It's some dumbass comment the President made.

The problem isn't the tainted jury pool, it's the propaganda win for the enemy. If we do convict KSM, then their supporters will just say it was fixed and quote the Presidents statement.

The only way to prove there isn't a fix is to acquit them.

So basically at this point, there really isn't a point in trying them at all because the very people we're most interested in convincing that we're a nation of laws will never believe it.

Good job, Mr. President.

Just watch COPS, that should clear it up...

mediablitz: Amazingly, we have tried and convicted over a hundred terrorists in civilian court, following the Constitutional provisions, without the country collapsing.

I thought it was nearer to 50. And how many of them were US citizens to begin with?

vernonFL: GRAHAM: Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?

What "battlefield" is Graham referring to?

Obviously one of those "we are always at war" freaks who thinks the Constitution should be on the honor system.