Consider the rationale driving these who object to real trials: it’s vital that the Government be able to use information that it obtained by torturing people. It’s equally vital that the Government be absolutely assured that it will obtain a conviction against anyone it accuses of being a Terrorist. Because this is a “war,” we can waive our usual rules of justice. Any proceeding which imposes limits on the Government’s ability to profit from its torture, or which introduces any uncertainty as to the verdict, is proven to be both inappropriate and dangerous. We can and should simply imprison whomever we want in the War on Terror without the need for any charges, but if we do charge and try them, it should only be in newly invented tribunals (i.e., military commissions) where traditional due process is severely reduced and the rules are designed to ensure a guilty verdict, even it means allowing torture-obtained evidence.
People who think this way, by definition, simply do not believe in the rule of law. A system that guarantees guilty verdicts is not one that operates under the rule of law. Those are called “show trials” — at least they used to be when other countries did that. And the demand that torture-obtained evidence be admissible not only removes one from adherence to the rule of law, but from the civilized world as well. The whole point of a “justice system” is that there are rules that are well-established and which apply equally to everyone. Although the requirement that the Government adhere to those rules will inevitably mean that some very, very bad people are acquitted — including mass murderers, child rapists, and even Terrorists — that’s the price we’ve always been willing to pay to live under what we call “the rule of law” and a “justice system.” Those pointing to Judge Kaplan’s ruling as proof that Terrorists should not be tried in a real court — all because he applied centuries-old legal principles to the Government — believe in none of that, by definition.
Agree completely, but would add that the key part here that always seems to slide by in this discussion is that the rules are set out in advance and we, as a society, agree to live by them (or, alternatively, agitate through similarly agreed upon channels to change the rules instead of merely ignoring them when it suits us and summarily declaring that incident a state secret). It is only through this unspoken covenant that the governors and the governed can coexist. As soon as it becomes allowable (and even expected in “serious” circles) that the rules can be changed by fiat, or for the convenience of one or the other of these two parties, or because of the relative wealth or perceived “importance” of one party, or by a President (or other high official) who is inexplicably deemed intrinsically incapable of breaking any laws, then a democratic society collapses. Thus is the first link of the chains forged.
And I’d say we’re already several links in. But nobody seems to care. Thus dies our Republic while the Tea Klan hollers about whether or not we should all have to pay for fire departments even if our own house is not actively on fire. I mean, that sort of socialistic fire extinguishing arrangement inevitably helps a lot of immigrants who burn their houses down all the time to cover up the rampant decapitations going on in there in accordance with sharia law. Am I right?
Lemkin 