Holder: No civilian trials for Gitmo detainees and KSM

[Edi]

TheHammer, here's a hint: When somebody attacks and dismantles the very premises of your argument, it's no use trying to use that same argument and whine about how some minor improvements were made when the premises are already demolished.

That is part of Logic 101, which you apparently failed.

[TheHammer]

Edi's declared Thanas to be "the winner". I guess I lost.

[Edi]

Edi's declared Thanas to be "the winner". I guess I lost.

What I'm doing is pointing out that you're making basic errors in logic and not even seeing them. I've been part of this debate, so I'm certainly not going to moderate it. If it does need intervention from moderators, Thanas and I will call in someone else who didn't take part to look at it.

Anyone interested in determining a winner in this debate is free to read through the thread and form their own conclusions about whose arguments are more persuasive. If you want to continue the debate, feel free to do so. Just don't expect to be able to repeat your old arguments without being challenged, because their very premises have been under attack and you've done essentially nothing to fend those attacks off.

[Versac]

Thanas, I agree with 90% of what you've said so far, but there are a couple sticking points I'd like to iron out:

Okay then. What measures are taken to ensure secret evidence (and by that I do not mean "oh yeah, we will give the defence council a blackened out page that says nothing more than "anonymous source X says", I mean cross examination and all that) is not permitted, what measures are taken to ensure the trial is public, what measures are taken to ensure the judges are impartial and not part of the same organization as the prosecution, what measures are taken to ensure the judges, prosecutors and defence councils are outside the military chain of command, what measures are taken to ensure the result can be challenged before the Supreme Court, what measures are taken to ensure that the defence has adequate time and resources to devote to the task, what measures are taken to ensure civilian council is permitted, what measures are taken to ensure the state cannot fall back to the secrecy doctrine, what measures are taken to ensure all opinions are judged on their merit instead of "well, we rather trust Private Schmuckatelli because he is an Army member than some farmer", what measures are taken constitutional safeguards apply?

Because if any of those are not implemented to the fullest, you cannot have a fair trial.

Do you actually pose this as a list of the bare minimums necessary for a fair trial? More on the impartiality in a second, but the stipulation that the trial be made available to both the public and the SCotUS seems rather arbitrary. Why would a closed, civilian court à la FISC (but adversarial, of course) not be acceptable? Using such a closed court would deeply undermine any appeal to the state secrets privilege while still allowing for the use of classified evidence. Hearsay evidence would still be an issue, but I cannot discount the potential value of information from reliable sources that may be impossible to recall for cross-examination.

An appeal is worthless considering it will only deal with questions of law, not with fact. And the judges are still not what I would consider "real judges", meaning impartial members that are not part of an organization that has a stake in this.

Given that military tribunals (and to a lesser extent, courts-martial) tend to deal with enemy combatants or other military affairs, can the judges ever be truly said to be impartial? Even leaving aside the modern debacle in redefining 'enemy combatant', how is your statement not an attack on military justice in general?

[Thanas]

Do you actually pose this as a list of the bare minimums necessary for a fair trial?

Yes. If any of those are missing, the potential of abuse is so strong that it may derail a whole trial.

More on the impartiality in a second, but the stipulation that the trial be made available to both the public and the SCotUS seems rather arbitrary. Why would a closed, civilian court à la FISC (but adversarial, of course) not be acceptable? Using such a closed court would deeply undermine any appeal to the state secrets privilege while still allowing for the use of classified evidence. Hearsay evidence would still be an issue, but I cannot discount the potential value of information from reliable sources that may be impossible to recall for cross-examination.

Any court which allows for hearsay evidence is no real court at all. There is a reason even the ancient Romans regarded hearsay evidence as problematic and prohibited it. As for the specifications of FISC, I have a bit of a problem with the impartiality of a court that has in the past acceded to 99.9% of Government wishes. However, even leaving that aside, the problem is that FISC does not allow civilian attorneys, only Government attorneys usually argue before it. Its records are also not public.

It is also not like the public cannot be excluded from certain portions of a full civilian trial, so why would you need to adapt FISC in the first place? The public is regularly excluded in ordinary criminal trials (for example, when a witness is highly emotional or an undercover cop speaks out). What I do have an issue with is with the whole process being kept secret.

Given that military tribunals (and to a lesser extent, courts-martial) tend to deal with enemy combatants or other military affairs, can the judges ever be truly said to be impartial? Even leaving aside the modern debacle in redefining 'enemy combatant', how is your statement not an attack on military justice in general?

The military justice system is adequate for the needs of the military in general. It is however not adequate IMO in judging suspected terrorists who were largely captured by the military, during military operations, were then flown into the military base Guantanamo by the military, then tortured by or with the consent of the military and whose acquittal would be a massive loss of face on part of the military. Especially not when the military justice system has, in the past, been complicit in covering up warcrimes or making sure only lower ranks get punished. Given how many careers are riding on this, I fail to see how one can expect the military justice system to be fair in this case.


@Hammerleinichen:
As you have done nothing but repeat your points over and over again, I fail to see what repeating myself would bring. You have failed to show how the military commissions would be in any way adequate to a trial, so you can kindly get lost.

[TheHammer]

Edi's declared Thanas to be "the winner". I guess I lost.

What I'm doing is pointing out that you're making basic errors in logic and not even seeing them. I've been part of this debate, so I'm certainly not going to moderate it. If it does need intervention from moderators, Thanas and I will call in someone else who didn't take part to look at it.

Anyone interested in determining a winner in this debate is free to read through the thread and form their own conclusions about whose arguments are more persuasive. If you want to continue the debate, feel free to do so. Just don't expect to be able to repeat your old arguments without being challenged, because their very premises have been under attack and you've done essentially nothing to fend those attacks off.

I'm not making any basic errors in logic. If so, please feel free to point them out - quoting things I've actually said rather than the distorted version you apparently have been getting from reading Thana's postings. The strawmen he's been stuffing has essentially been painting me as a Tribunal apologist and supporter and demanding justification where I've made no such statement.

At no point have I said that the tribunals consituted an equivalent to civilian trials.
At no point did I say that tribunals were "good enough"

I've been asked for questions that no one has the answer to, such as how appeals will actually work should detainees attempt to appeal. And thus I've chosen to differ until we see some actual results. For all of Thana's complaints about "secret evidence" I'd think he'd at least understand that I can't pull answers for questions that have yet to be resolved. Its like demanding I tell him who is going to win the World Series (Or Premier League winner if you prefer) this year. Sure I could speculate, but It would be just that - speculation.

The one and only thing I've been arguing is against certain inaccuracies in Thana's postings regarding these new tribunals and their policies. I've done so while fully acknowledging that there are still other legitimate problems with these new tribunals. And as I also said, I think we'd be on the same side in that regard. But they did fix certain aspects and improve others from the Bush Era tribunals (again as highlighted earlier). So we should at least acknowledge steps in the right direction, while also realizing there is still a ways to go.

And as you said, anyone who has read through these postings will make up their own mind based on their own views and biases.

[Simon_Jester]

TH, one of the big problems people have with you is that when we ask "how will these tribunals work," your basic answer seems to boil down to "I don't know, but we should trust Obama and be grateful for the improvements we are assured will be in place."

This overlooks huge questions: why we have no assurances that the tribunals will honor rules of jurisprudence, for one. For another, how we have arrived at a position where even such small and incremental gestures in the direction of the rule of law and human rights are significant, when fifteen years ago we'd have universally said that the military tribunals themselves violated all manner of basic American principles. How far have our standards fallen, in order for us to be satisfied with this?

From the point of view of a rule-of-law advocate who cares about human rights, this is like saying that the guy who punches you in the gut fifteen times is worse than the guy who punches you in the gut twelve times. In theory it's true, but it ignores the larger question of "who is this guy, why is he punching us in the gut, and why are we letting him?"

[TheHammer]

TH, one of the big problems people have with you is that when we ask "how will these tribunals work," your basic answer seems to boil down to "I don't know, but we should trust Obama and be grateful for the improvements we are assured will be in place."

Did I say anything about "trusting Obama"? And how does my not knowing exactly how the tribunals will work invalidate my points about innaccuracies presented by Thanas? I don't have all the details, I'm just pointing out the details I know to be wrong. Otherwise it creates confusion and promotes the spread of misinformation.

This overlooks huge questions: why we have no assurances that the tribunals will honor rules of jurisprudence, for one. For another, how we have arrived at a position where even such small and incremental gestures in the direction of the rule of law and human rights are significant, when fifteen years ago we'd have universally said that the military tribunals themselves violated all manner of basic American principles. How far have our standards fallen, in order for us to be satisfied with this?

Very interesting... Please tell me how you arrived at the conclusion that acknowleding some improvement while recognizing there are still problems equates to satisfaction?

I'm not overlooking anything. Merely pointing to:

Fixes:
No evidence gained through coercion or torture
No "secret evidence" - shown to judge and jury but not to defendent

Improvements:
An appeals process to civilian courts
Actual Judges (Military ones, but judges none the less)

While still acknowledging problems:
Hearsay evidence
Less open proceedings than in civilian courts
Lack of full legal protections
etc.

Again, I suspect you've been reading Thana's retorts rather than what I've actually been saying. Please feel free to quote me though if you find this to be innacurate.

From the point of view of a rule-of-law advocate who cares about human rights, this is like saying that the guy who punches you in the gut fifteen times is worse than the guy who punches you in the gut twelve times. In theory it's true, but it ignores the larger question of "who is this guy, why is he punching us in the gut, and why are we letting him?"

Like I said earlier, its perfectly reasonable to put a bank robber on trial for the crime of robbing banks. But we don't need to tack on charges of rape and murder when they don't apply. If you are not accurate in your facts it makes it easier for anyone disagreeing with you to use that to challenge your credibility. And that should be important, unless your goal is simply to preach to the choir so to speak...

[Versac]

Reverse order, so the easy stuff comes first.

The military justice system is adequate for the needs of the military in general. It is however not adequate IMO in judging suspected terrorists who were largely captured by the military, during military operations, were then flown into the military base Guantanamo by the military, then tortured by or with the consent of the military and whose acquittal would be a massive loss of face on part of the military. Especially not when the military justice system has, in the past, been complicit in covering up warcrimes or making sure only lower ranks get punished. Given how many careers are riding on this, I fail to see how one can expect the military justice system to be fair in this case.

To make sure I understand your stance, the problem in this set of circumstances is not merely that the military is ruling on matters largely carried out by the military, but that the politics surrounding Gitmo have grown to the point where impartiality is impossible within the scope of a military commission? Agreed on that point. Ideally all of these cases would be in a traditional civilian court (or gods forbid, the ICC. But that's an etirely different axe to grind.), but that's when we get to the following problem...

Any court which allows for hearsay evidence is no real court at all. There is a reason even the ancient Romans regarded hearsay evidence as problematic and prohibited it. As for the specifications of FISC, I have a bit of a problem with the impartiality of a court that has in the past acceded to 99.9% of Government wishes. However, even leaving that aside, the problem is that FISC does not allow civilian attorneys, only Government attorneys usually argue before it. Its records are also not public.

It is also not like the public cannot be excluded from certain portions of a full civilian trial, so why would you need to adapt FISC in the first place? The public is regularly excluded in ordinary criminal trials (for example, when a witness is highly emotional or an undercover cop speaks out). What I do have an issue with is with the whole process being kept secret.

To clarify what I said earlier, I'm sure there are specific cases where testimony is provided by reliable sources that could be theoretically cross-examined, but recalling them to serve as witnesses is either impossible or dangerously impractical. A covert intelligence source may have damning evidence that would quickly establish definitive guilt, but be too useful to justify recalling for one conviction. This is where things get ugly, given the perpetual nature of a 'War on Terror'. Holding a suspect indefinitely without establishing cause is morally reprehensible regardless of legality, but in some cases just might be necessary. That's a subject I'm not prepared to pass judgement on.

I'll bet the above only holds for a small fraction of the cases in question. The rest of hearsay evidence is bullshit, and should be treated as such.

As for potential closed court proceedings, I can't imagine that any significant part of the trials would be cleared for public view. Perhaps I went too far with a direct FISC analogy - I meant only a specially closed system that otherwise possessed all the proceedings of a standard federal trial - but unless there's a major shift in national security policy, I fail to see a significant difference between that and an inevitable mostly-closed court.

[Thanas]

@Hammerleinichen:

Ah, the restatement of your opinions once more. No reason to deal with them once again.

To make sure I understand your stance, the problem in this set of circumstances is not merely that the military is ruling on matters largely carried out by the military, but that the politics surrounding Gitmo have grown to the point where impartiality is impossible within the scope of a military commission? Agreed on that point. Ideally all of these cases would be in a traditional civilian court (or gods forbid, the ICC. But that's an etirely different axe to grind.), but that's when we get to the following problem...

We do not disagree here.

To clarify what I said earlier, I'm sure there are specific cases where testimony is provided by reliable sources that could be theoretically cross-examined, but recalling them to serve as witnesses is either impossible or dangerously impractical. A covert intelligence source may have damning evidence that would quickly establish definitive guilt, but be too useful to justify recalling for one conviction.

Too bad for the prosecution then. If the entire case rests on the testimony of one or two hidden sources, that means it is an extremely weak case from the start. In the real world, this where a defence attorney starts to think of whether this case is not made up right from the start, if there is no other evidence. BTW, even if one cannot prove thinks like "he planted the bomb", one can still make a case for a lesser charge (like aiding or being part of a terrorist organization) and get a conviction on that. This is what happened to one of Bin Laden's bodyguards, for example. All they could prove with real evidence was that he drove Bin Laden around, so they nailed him for that and he got, if memory serves, 15+ years in prison (which is more than other countries charge for murder).

This is what I do not get about this - one should not need hearsay or other evidence like this to convict them.

This is where things get ugly, given the perpetual nature of a 'War on Terror'. Holding a suspect indefinitely without establishing cause is morally reprehensible regardless of legality, but in some cases just might be necessary.

Why?

As for potential closed court proceedings, I can't imagine that any significant part of the trials would be cleared for public view. Perhaps I went too far with a direct FISC analogy - I meant only a specially closed system that otherwise possessed all the proceedings of a standard federal trial - but unless there's a major shift in national security policy, I fail to see a significant difference between that and an inevitable mostly-closed court.

What do you mean? A significant difference between closed civilian trials and a mostly-closed civilian court or a significant difference between military commissions and a mostly-closed court? If it is the latter, then I think you are a bit off your rockers, if it is the former, I would still make the case that courts are, by law, required to be as open as possible.

[Versac]

Too bad for the prosecution then. If the entire case rests on the testimony of one or two hidden sources, that means it is an extremely weak case from the start. In the real world, this where a defence attorney starts to think of whether this case is not made up right from the start, if there is no other evidence. BTW, even if one cannot prove thinks like "he planted the bomb", one can still make a case for a lesser charge (like aiding or being part of a terrorist organization) and get a conviction on that. This is what happened to one of Bin Laden's bodyguards, for example. All they could prove with real evidence was that he drove Bin Laden around, so they nailed him for that and he got, if memory serves, 15+ years in prison (which is more than other countries charge for murder).

This is what I do not get about this - one should not need hearsay or other evidence like this to convict them.

I would debate your second sentence, for exactly the reason you lay out - accumulation of evidence is key, and a few good sources can make the difference between a lesser and greater charge. The case you reference sounds interesting though, and I'd like to take a look. Link/cite?

This is where things get ugly, given the perpetual nature of a 'War on Terror'. Holding a suspect indefinitely without establishing cause is morally reprehensible regardless of legality, but in some cases just might be necessary.

Why?

Federal rules of criminal procedure seem to favor language such as "without unnecessary delay" regarding the speed of proceedings. Hopefully I'm not edging too close to apologism when I say I can certainly imagine causes for necessary delay given the current situation on the ground. Is there a specific time table that must be followed throughout proceedings? Admittedly, the excuse of 'necessary delay' opens a direct avenue for abuse - there needs to be independent oversight cleared to judge any rationale for exceptional delay if this is to be allowed.

As for potential closed court proceedings, I can't imagine that any significant part of the trials would be cleared for public view. Perhaps I went too far with a direct FISC analogy - I meant only a specially closed system that otherwise possessed all the proceedings of a standard federal trial - but unless there's a major shift in national security policy, I fail to see a significant difference between that and an inevitable mostly-closed court.

What do you mean? A significant difference between closed civilian trials and a mostly-closed civilian court or a significant difference between military commissions and a mostly-closed court? If it is the latter, then I think you are a bit off your rockers, if it is the former, I would still make the case that courts are, by law, required to be as open as possible.

The former, certainty. This is really more of a concession to realpolitik than an ideal situation. Given an explicit, reasonable schedule for declassification (such as cessation of combat missions in Afghanistan), it is one I would accept if it means getting civilian trials underway. If you have a strong legal case for mandatory, continual transparency though, I'd love to hear it. No, really - I actually would welcome such an approach.

[Thanas]

I would debate your second sentence, for exactly the reason you lay out - accumulation of evidence is key, and a few good sources can make the difference between a lesser and greater charge.

If your sources cannot be produced, the Government should not have the right to use them. Unless of course the defence gets to claim the same right with regards to exculpatory evidence. You see the problem if that happens, yes?

The case you reference sounds interesting though, and I'd like to take a look. Link/cite?

I actually messed up the cases a bit. It was this year's case against a guy who planned to blow up a pipeling at Kennedy Airport. He got 15 years for providing "material support to terrorists". Link.

Federal rules of criminal procedure seem to favor language such as "without unnecessary delay" regarding the speed of proceedings. Hopefully I'm not edging too close to apologism when I say I can certainly imagine causes for necessary delay given the current situation on the ground. Is there a specific time table that must be followed throughout proceedings? Admittedly, the excuse of 'necessary delay' opens a direct avenue for abuse - there needs to be independent oversight cleared to judge any rationale for exceptional delay if this is to be allowed.

The US already allows for delays up to years in long civilian cases. I fail to see how this should in any way be extended. Major drug cases can easily drag on for years, and do not even get me started on how long RICO trials can potentially take. There are several cases of mob bosses who lived and died under indictments, for example.

The former, certainty. This is really more of a concession to realpolitik than an ideal situation.

Why should there be one in the first case? The US has imprisoned these people without trial for up to 9, close to ten, years now, during which they were tortured etc. Don't you think the US has gotten enough slack on this issue? Heck, this is worse than the Gulag system already. If your record is worse than that of the freaking Soviet Union, then maybe that is a hint the system is bad enough and should not be cut any more slack, no?

Given an explicit, reasonable schedule for declassification (such as cessation of combat missions in Afghanistan), it is one I would accept if it means getting civilian trials underway.

So your argument here is in essence: "Lock them away until an indefinite end". Are you Bush in disguise?

If you have a strong legal case for mandatory, continual transparency though, I'd love to hear it. No, really - I actually would welcome such an approach.

It is quite easy. Look up the constitution, especially the bill of rights.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Wikipedia gives quite a good summary what the various words mean..

Unless of course, you want to argue that the "rights" enshrined in the constitution of the United States are mere "privileges", who can be taken away by the state at whim, and that despite the statements by the Founding Fathers, they are not absolute, but merely apply to persons the Government deem worthy of it. And of course, unless you want to argue the Constitution itself is worthless and can be declared to apply or not apply at the whim of the Government, or that it is not absolute and must be molded by the state to conform to certain situations.

In which case, you might just as well make a case that the Constitution should not apply at all anymore.

[Versac]

Before I reply further, I'm going to cite portions of relevant documents to clarify my position and hopefully get your take on some legal specifics.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government, rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

I postulate that cases exist where reputable intelligence sources are prevented from returning to stand as witnesses by the nature of their assignment. This would be a valid reason for continued delay by the SCotUS decision above. I cannot emphasize enough, however, that I agree that delaying trial either without cause or for the purpose of punishment should be weighted heavily against the government, and presumably this is the case for the majority of present detainees. The validity of the missing-witness explanation would need to be evaluated on a case-by-case basis by an independent authority with classified access, as source identity and location is the kind of information that gets people killed if it leaks. Bad-faith action by the government in preventing the timely return of said sources should be met with the immediate trial without the evidence in contention. Is this acceptable?

Quick definition of terms:

(a) “Classified information”, as used in this Act, means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014 (y)).
(b) “National security”, as used in this Act, means the national defense and foreign relations of the United States.

The following excerpts are from TITLE 18 > PART I > CHAPTER 113B > § 2339B, which defines the crime of 'Providing material support or resources to designated foreign terrorist organizations'. I find many details regarding its application disturbing.

(a) Prohibited Activities.—
(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

'Material support or resources' is specifically defined later on in a seemingly-reasonable way. This isn't the source of my misgivings but if you have issues with the scope of the crime itself, raise them.

(d) Extraterritorial Jurisdiction.—
(1) In general.— There is jurisdiction over an offense under subsection (a) if—
(A) an offender is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22))) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(20)));
(B) an offender is a stateless person whose habitual residence is in the United States;
(C) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States;
(D) the offense occurs in whole or in part within the United States;
(E) the offense occurs in or affects interstate or foreign commerce; or
(F) an offender aids or abets any person over whom jurisdiction exists under this paragraph in committing an offense under subsection (a) or conspires with any person over whom jurisdiction exists under this paragraph to commit an offense under subsection (a).

This seems to extend jurisdiction to any individual the US can drag back to the states, or any offence that affects foreign commerce. Modeling a limit to judicial authority on the commerce clause strikes me as a Bad Idea for preventing abuse.

(f) Classified Information in Civil Proceedings Brought by the United States.—
(1) Discovery of classified information by defendants.—
(A) Request by united states.— In any civil proceeding under this section, upon request made ex parte and in writing by the United States, a court, upon a sufficient showing, may authorize the United States to—
(i) redact specified items of classified information from documents to be introduced into evidence or made available to the defendant through discovery under the Federal Rules of Civil Procedure;
(ii) substitute a summary of the information for such classified documents; or
(iii) substitute a statement admitting relevant facts that the classified information would tend to prove.
(B) Order granting request.— If the court enters an order granting a request under this paragraph, the entire text of the documents to which the request relates shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(C) Denial of request.— If the court enters an order denying a request of the United States under this paragraph, the United States may take an immediate, interlocutory appeal in accordance with paragraph (5). For purposes of such an appeal, the entire text of the documents to which the request relates, together with any transcripts of arguments made ex parte to the court in connection therewith, shall be maintained under seal and delivered to the appellate court.
(2) Introduction of classified information; precautions by court.—
(A) Exhibits.— To prevent unnecessary or inadvertent disclosure of classified information in a civil proceeding brought by the United States under this section, the United States may petition the court ex parte to admit, in lieu of classified writings, recordings, or photographs, one or more of the following:
(i) Copies of items from which classified information has been redacted.
(ii) Stipulations admitting relevant facts that specific classified information would tend to prove.
(iii) A declassified summary of the specific classified information.
(B) Determination by court.— The court shall grant a request under this paragraph if the court finds that the redacted item, stipulation, or summary is sufficient to allow the defendant to prepare a defense.
(3) Taking of trial testimony.—
(A) Objection.— During the examination of a witness in any civil proceeding brought by the United States under this subsection, the United States may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible.
(B) Action by court.— In determining whether a response is admissible, the court shall take precautions to guard against the compromise of any classified information, including—
(i) permitting the United States to provide the court, ex parte, with a proffer of the witness’s response to the question or line of inquiry; and
(ii) requiring the defendant to provide the court with a proffer of the nature of the information that the defendant seeks to elicit.
(C) Obligation of defendant.— In any civil proceeding under this section, it shall be the defendant’s obligation to establish the relevance and materiality of any classified information sought to be introduced.

I hardly know where to begin in this section. (1)>(A)>(iii) seems to allow the government to flat out substitute statements of fact for classified documents. If you want to call out hearsay or secret evidence, this seems to be a giant red flag. (2)>(A)>(ii) is much along the same line. (3)>(A) directly authorizes gag orders almost at will, with the modern frequency of classification. And (3)>(C) places the burden of proving evidence as relevant on the defendant. Particularly in combination with (A), this literally forces the defendant to prove the relevance of their own words before they speak them.

I really hope I'm reading the above wrong, because it effectively kills any hope of a just trial even within civil court. If so, then transfer from military commissions would hardly seem to have any recognizable effect in promoting a just outcome.

[Thanas]

Before I reply further, I'm going to cite portions of relevant documents to clarify my position and hopefully get your take on some legal specifics.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government, rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

I postulate that cases exist where reputable intelligence sources are prevented from returning to stand as witnesses by the nature of their assignment. This would be a valid reason for continued delay by the SCotUS decision above. I cannot emphasize enough, however, that I agree that delaying trial either without cause or for the purpose of punishment should be weighted heavily against the government, and presumably this is the case for the majority of present detainees. The validity of the missing-witness explanation would need to be evaluated on a case-by-case basis by an independent authority with classified access, as source identity and location is the kind of information that gets people killed if it leaks. Bad-faith action by the government in preventing the timely return of said sources should be met with the immediate trial without the evidence in contention. Is this acceptable?

Of course. However, do note that delays of that nature which take longer than a year are considered presumptively prejudicial and I would agree witth that. And I find it hard to find a scenario where the US is able to get enough testimony from a source to grab and hold a specific person for 9+ years, but cannot produce such a source for trial. I mean, this would imply that they have high-placed undercover agents for over a decade now. Which means the source is that valuable and well-protected that the danger of it being compromised would most likely outweigh any trial itself.

So IMO I rather doubt that there exist deep sources that ascertain specific guilt to the letter, especially since it is close to a decade now. I find the existence of such sources highly implausible.

Quick definition of terms:

(a) “Classified information”, as used in this Act, means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014 (y)).
(b) “National security”, as used in this Act, means the national defense and foreign relations of the United States.

The following excerpts are from TITLE 18 > PART I > CHAPTER 113B > § 2339B, which defines the crime of 'Providing material support or resources to designated foreign terrorist organizations'. I find many details regarding its application disturbing.

(a) Prohibited Activities.—
(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

'Material support or resources' is specifically defined later on in a seemingly-reasonable way. This isn't the source of my misgivings but if you have issues with the scope of the crime itself, raise them.

(d) Extraterritorial Jurisdiction.—
(1) In general.— There is jurisdiction over an offense under subsection (a) if—
(A) an offender is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22))) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(20)));
(B) an offender is a stateless person whose habitual residence is in the United States;
(C) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States;
(D) the offense occurs in whole or in part within the United States;
(E) the offense occurs in or affects interstate or foreign commerce; or
(F) an offender aids or abets any person over whom jurisdiction exists under this paragraph in committing an offense under subsection (a) or conspires with any person over whom jurisdiction exists under this paragraph to commit an offense under subsection (a).

This seems to extend jurisdiction to any individual the US can drag back to the states, or any offence that affects foreign commerce. Modeling a limit to judicial authority on the commerce clause strikes me as a Bad Idea for preventing abuse.

I do not have issues with this, to be honest. Most terror laws in other countries are written much the same and have not resulted in heinous abuse.

(f) Classified Information in Civil Proceedings Brought by the United States.—
(1) Discovery of classified information by defendants.—
(A) Request by united states.— In any civil proceeding under this section, upon request made ex parte and in writing by the United States, a court, upon a sufficient showing, may authorize the United States to—
(i) redact specified items of classified information from documents to be introduced into evidence or made available to the defendant through discovery under the Federal Rules of Civil Procedure;
(ii) substitute a summary of the information for such classified documents; or
(iii) substitute a statement admitting relevant facts that the classified information would tend to prove.
(B) Order granting request.— If the court enters an order granting a request under this paragraph, the entire text of the documents to which the request relates shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(C) Denial of request.— If the court enters an order denying a request of the United States under this paragraph, the United States may take an immediate, interlocutory appeal in accordance with paragraph (5). For purposes of such an appeal, the entire text of the documents to which the request relates, together with any transcripts of arguments made ex parte to the court in connection therewith, shall be maintained under seal and delivered to the appellate court.
(2) Introduction of classified information; precautions by court.—
(A) Exhibits.— To prevent unnecessary or inadvertent disclosure of classified information in a civil proceeding brought by the United States under this section, the United States may petition the court ex parte to admit, in lieu of classified writings, recordings, or photographs, one or more of the following:
(i) Copies of items from which classified information has been redacted.
(ii) Stipulations admitting relevant facts that specific classified information would tend to prove.
(iii) A declassified summary of the specific classified information.
(B) Determination by court.— The court shall grant a request under this paragraph if the court finds that the redacted item, stipulation, or summary is sufficient to allow the defendant to prepare a defense.
(3) Taking of trial testimony.—
(A) Objection.— During the examination of a witness in any civil proceeding brought by the United States under this subsection, the United States may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible.
(B) Action by court.— In determining whether a response is admissible, the court shall take precautions to guard against the compromise of any classified information, including—
(i) permitting the United States to provide the court, ex parte, with a proffer of the witness’s response to the question or line of inquiry; and
(ii) requiring the defendant to provide the court with a proffer of the nature of the information that the defendant seeks to elicit.
(C) Obligation of defendant.— In any civil proceeding under this section, it shall be the defendant’s obligation to establish the relevance and materiality of any classified information sought to be introduced.

I hardly know where to begin in this section. (1)>(A)>(iii) seems to allow the government to flat out substitute statements of fact for classified documents. If you want to call out hearsay or secret evidence, this seems to be a giant red flag. (2)>(A)>(ii) is much along the same line. (3)>(A) directly authorizes gag orders almost at will, with the modern frequency of classification. And (3)>(C) places the burden of proving evidence as relevant on the defendant. Particularly in combination with (A), this literally forces the defendant to prove the relevance of their own words before they speak them.

I really hope I'm reading the above wrong, because it effectively kills any hope of a just trial even within civil court. If so, then transfer from military commissions would hardly seem to have any recognizable effect in promoting a just outcome.

You are reading this wrong. This section only covers civil proceedings, not criminal proceedings. Yes, it is a problem, especially for torture victims seeking compensation (it has been used to deny innocent persons compensation before, even in the case of Canadian and German citizens who were illegally abducted by the CIA because they happened to have similar sounding names - the CIA promptly promoted the person who did that to head of that taskforce, good going there). But I fail to see how it would apply to criminal proceedings.

[Thanas]

To follow it up - there is no guarantee that even if it would apply to criminal proceedings, the same would also not be true in civil proceedings.