Re: If we do get Afghanistan, what shall we do with it?

From: Lee Daniel Crocker (
Date: Tue Nov 27 2001 - 12:20:22 MST

> So? You are assuming that they will not be made public, to start with.
> Furthermore, public trials are actually NOT the right of every person.
> You have a right to a trial by a jury of your peers. There is nothing in
> the constitution that says that the trial has to be public as it occurs.

Actually, the term "public trial" IS in the consitution, and the
term "jury of peers" is not (it's from the Magna Carta). I don't
personally like to use the Constitution to justify what I consider
right and wrong, but if you're going to use it, take a bit more
care with the quotes. How you care to interpret "public trial" is
of course up to the discretion of various judges.

We are assuming the tribunals will not be public because (1) the law
says they don't have to be, and (2) the last time they were used, they
were closed. That seems like a reasonable assumption to me. If they
want to do public tribunals, I would certainly prefer that.

> Indeed, it is often the prerogative of judges to seal a trial to
> whatever extent they feel necessary. Trials must be a matter of public
> record, i.e. their proceedings must be made public at some time after
> they occur, but, for instance, jury deliberations are not a matter of
> public record, nor are many settlements and plea bargains.

Yes, the words "public trial" are pretty vague, and judges do have a
bad habit of interpreting vague constitutional provisions to accomplish
whatever result they think it right at the time. I personally think
it should have been clearer. I _don't_ think judges should have
discretion on things like cameras, for instance. Jury deliberations
I don't have a problem with, nor _civil_ monetary settlements.
Criminal plea bargains, though, should be public (as most are).

> Given the circumstances, sealing trials of terrorists until the conflict
> is concluded, or for simply some time after trial to greatly reduce the
> intelligence value of those public records, is a rational measure to
> take. It is a bit extreme, but we are not dealing with citizens here,
> nor are we dealing with anyone who would in any rational way accept OUR
> posession of similar civil rights.

I'm not sure I see the vital national security concerns here. What
information might come out at trial that wouldn't make the public even
safer, like people's affiliations and histories, the security lapses
they took advantage of, etc.?

> Human/civil rights only exist de facto when all participating parties
> agree they do, regardless of their de theorem basis. If a murderer
> doesn't think you have a right to live, then he similarly loses his
> right to live. This is the basis of self defense. Similarly, the Taliban
> and al Qaeda organizations have denied that human beings posess any
> human rights outside the Sharia Law. Hold them to their own standard.

We'll just have to disagree here. If you don't try to live every moment
of your own life by your own standards, then what's the point of having

> That is so obviously the problem. Yet the problem with Lee's argument
> now is that he is insisting that our trial system be inviolate, in that
> the principle of public trials be held sacrosanct, but he is perfectly
> willing to violate his own premise in changing jury selection rules,
> rules of evidence, and procedural details just so his concept will work.
> One more example of "stealing the assumption".

You have a reading comprehension problem, Mike. I never said anything
even remotely resembling the idea that I supported the American trial
system as a whole, and I have been entirely consistent on that. I meant
exactly, precisely, what I said in plain English, no more and no
less. I'll say it again so you can get it this time: I hold the principle
of PUBLIC TRIALS sacrosanct. Whatever other principles you consider to
part of the American judicial system are fair game for reform--as long as
the trials thus created remain open to public scrutiny. It's about
transparency, not whatever particulars some document mentions. The
particulars can change with the circumstances, but the one, and only,
absolute inviolable principle is that trials be PUBLIC.

Lee Daniel Crocker <> <>
"All inventions or works of authorship original to me, herein and past,
are placed irrevocably in the public domain, and may be used or modified
for any purpose, without permission, attribution, or notification."--LDC

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