Balkinization  

Tuesday, March 27, 2007

More on a desire not to testify

Sandy Levinson

This just in from the New York Times:


Goodling, on voluntary leave from the Justice Department, was one of several aides closely involved in planning the firings. She was called to testify as part of a Senate inquiry, and her refusal appeared to surprise Justice officials who hours earlier said department aides would fully cooperate with the investigation.

''I have decided to follow my lawyer's advice and respectfully invoke my constitutional right,'' Goodling said in a statement to the Senate Judiciary Committee.

Her attorney, John Dowd, said the Senate inquiry amounts to a perjury trap for his client. ''One need look no further than the recent circumstances and proceedings involving Lewis Libby,'' Dowd said.


So my questions are these: a) Does the fact that Ms. Goodling is on "voluntary leave" mean that she is still being paid by the taxpayers? I would assume the answer is no, unless she is taking advantage of unused personal leave time. b) Is her job being performed by someone else, and, if so, what responsibilities has that other person had to ignore in order to perform Ms. Goodling's. c) What is the precise nature of the ostensible "constitutional right" that she is invoking on the advice of counsel? Can we now explain to the IRS that we are not sending in our tax return this year because, given Al Capone and other examples, we just don't trust the IRS to play fair with people it views as public enemies (and, in the age of the Bush-Cheney Administration, that could be a very broad category indeed)? If not, why not? Or is there some special principal--call it the "non-oversight one"--that applies especially to Congress? And, by the way, does it apply only to officials of the Executive Branch, or can any private citizen invoke the "I really don't like you people and therefore I'm taking the 5th" defense? It would, of course, be entirely different if she were forthrightly willing to say "I'm not sure that everything I did was really legal and therefore I'm going to be prudent and refuse to talk about any of it," which is certainly an inference one can draw from most persons' invocation of the Fifth Amendment.

Scooter Libby was convicted of lying to relevant authorities with regard to material facts. To put it mildly, the federal prosecutor found impressive witnesses, from within the Administration, who offered evidence that allowed what by all accounts was a conscientious jury to conclude, beyond reasonable doubt, that he in fact did lie. So isn't Ms. Gooding simply engaging in slander against the special prosecutor? (And, incidentally, I'm wondering if the Republicans who are now so adamant in their defense of Scooter are equally concerned about other police "sting operations" that, to the naive, look like, but are never accepted by courts as, entrapment.)

Also, for the record, I have long--i.e., well before this current episode--been fairly critical of the scope of the right against self-incrimination. I'm quite adamant about preventing police misconduct, and a prophylactic rule against self-incrimination might be effective in limiting that, but that rationale doesn't apply, e.g., to testimony before Congress or, indeed, being called to the witness stand in open court. Other undeniably just political systems do without a strong right against self-incrimination of the US variety. Though I don't put it in the same category as other features of our defective Constitution, I'm really not sure why anyone should celebrate the present interpretation of the 5th Amendment (whether or not it would in fact protect Ms. Gooding).


Comments:

This was addressed well by a reader (BK) of Joshua Marshall's Talking Points Memo:

Monica Goodling does have a good faith basis for pleading the Fifth Amendment - just not the ones in her lawyer's letter that are getting all the attention.
Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation.

All the rest of the crap in her lawyer's letter is intended to sooth as much as possible WH anger at her for invoking the Fifth.


Link
 

Can the Senate call her up and ask her other factual questions:

Do/did you work at the DoJ?

Who is your boss?

What is your job description?

Are you paid while on leave?

What email accounts do you used to communicate with government officials?

How do you communicate with other officials?

etc.
 

Sorry for the non-germane question, but didn't a court somewhere already decide that you can't leave ill-gotten income off of your tax return as an exercise of the right not to self-incriminate? I remember learning that in class, but can't think of the case.
 

I sure hope Ms. Goodling's lawyers are acting in her best interests. It seems like they're acting in the best interests of the WH. I wonder who's paying for this high-priced talent.
 

Prof. Levinson [from the post]:

Her attorney, John Dowd, said the Senate inquiry amounts to a perjury trap for his client. "One need look no further than the recent circumstances and proceedings involving Lewis Libby," Dowd said.

...

Scooter Libby was convicted of lying to relevant authorities with regard to material facts. To put it mildly, the federal prosecutor found impressive witnesses, from within the Administration, who offered evidence that allowed what by all accounts was a conscientious jury to conclude, beyond reasonable doubt, that he in fact did lie. So isn't Ms. Gooding simply engaging in slander against the special prosecutor?


You have to remember that Ms. Gooding got her legal reasoning training at Regent University. You know, "faith based education".

... (And, incidentally, I'm wondering if the Republicans who are now so adamant in their defense of Scooter are equally concerned about other police "sting operations" that, to the naive, look like, but are never accepted by courts as, entrapment.)

Of course not. Her argument "is limited to the present circumstances, for the problem of equal protection ... generally presents many complexities."

Cheers,
 

This comment has been removed by the author.
 

If one can invoke the Fifth Amendment on the grounds that testimony may result in criminal prosecution for perjury, are there any circumstances under which one ought to testify under oath?

For example, suppose a subpoena is issued compelling me to testify in a criminal case. Why should I testify? Why should I take time out of my day, drive to court, wrinkle my suit, miss an episode of Days of our Lives--when all I need to do is politely inform the court that I cannot testify because my testimony may result in a criminal charge of perjury and therefore I am invoking my Fifth Amendment right to remain silent?

I was under the impression that the Fifth Amendment protected one against disclosing crimes already committed , thus protecting oneself from self-incrimination. I did not realize that the Fifth Amendment could be invoked so that one may be protected from actually committing a crime while on the stand in the form of perjury. This appears patently ridiculous, since any testimony under oath may, if referred by the prosecutor to the Grand Jury and found to contain false testimony, result in a charge of perjury. So I ask again, why should anyone ever testify under oath?

Since one is not paid to testify before a court and since testifying results in some degree of inconvenience, and since sworn testimony carries with it the chance for perjury, under no circumstances ought one to testify under oath. This is especially true of public servants, who not only can refuse to testify, but who are also (ostensibly) entitled to a free paid vacation--aka, a "voluntary leave of absence"--by virtue of the fact that their testimony has been requested. This is a win-win situation for everyone--except for the courts, the accused in a criminal case (who can no longer obtain witnesses for his defense--why should they testify?), and anyone who pays taxes (since government programs can no longer be evaluated by Congress via sworn testimony, their usefulness can no longer be ascertained).

Of course, were I the defendant, it may be in my best interests to testify, however given the fact that I can no longer obtain witnesses for my defense--they may incriminate themselves in the course of testimony, thus it is more convenient for them to invoke the Fifth and stay home and avoid the situation altogether--maybe it would be more convenient for me to simply plead guilty.

In fact, since sworn testimony is now so declasse, perhaps we can simply have closed-door, secret hearings without a transcript as the President suggests. Although, given the fact that such secret hearings still require a time commitment, perhaps we should move on to Presidential suggestion #2: instead of actually “holding a trial” we can simply send the defendant to Gitmo and obtain the imprisonment without the impediment of a trial altogether.
 

Professor Levinson:

Also, for the record, I have long--i.e., well before this current episode--been fairly critical of the scope of the right against self-incrimination. I'm quite adamant about preventing police misconduct, and a prophylactic rule against self-incrimination might be effective in limiting that, but that rationale doesn't apply, e.g., to testimony before Congress or, indeed, being called to the witness stand in open court. Other undeniably just political systems do without a strong right against self-incrimination of the US variety. Though I don't put it in the same category as other features of our defective Constitution, I'm really not sure why anyone should celebrate the present interpretation of the 5th Amendment (whether or not it would in fact protect Ms. Gooding).

Honestly, are you kidding me?

The right to silence has been one of the bedrock principles of Anglo American jurisprudence since the British rebelled against the 16th century star chambers and is based on the ancient latin maxim "nemo tenetur seipsum accusare" or "no man is bound to accuse himself."

Good heavens, this right is now embedded in nearly every democratic country and many international treaties setting forth basic rights of criminal defendants.

This right is the basis of placing the burden of proof on the state to prove criminal guilt beyond a reasonable doubt. The alternative you are proposing of suspending the right to silence for testimony before courts or Congress is the reinstitution of the star chambers where the witness was hauled in front of a tribunal with no notice of charges or what he would be asked, made to take an oath to tell the truth and then faced the alternatives of perjury for lying, contempt of court for remaining silent or proving his or her own guilt.

Is this what you truly believe?
 

I believe that we generally expect people to tell the truth about their conduct, and that exceptions to this expectation require a defense. As earlier noted, I strongly support prophylactic rules designed to limit police misconduct (such as Miranda).

If Mr. DePalma seriously compares the Congress of the United States or criminal trials in federal courts to "star chamber," then I wonder why he isn't at least a bit sympathetic to the critics of the kangaroo "courts" (it is probably an injustice to kangaroos to link them with the alleged "legal process" going on at Guantanamo)tolerated under the MCA. I am generally unsympathetic to the attacks that are regularly leveled at Mr. DePalma, but in this case I must say that I do not believe he is good faith in playing the "star chamber" card in order to defend Ms. Goodling. My impression of star chamber (which I have admittedly not studied in some years) is that people were likely to be accused of various forms of treason, including compassing the king's or queen's death or denying certain tenets of Protestantism, including the legitimacy of the displacement of the Roman Catholic Church. I am not aware that star chambers ever involved committees of parliament that were commanding members of the King's or Queen's personal household to testify to misleading Parliament.(It is also false, I am quite certain, that European legal systems necessarily allow defendants to avoid testifying or, for example, require a judge to ignore the fact that the defendant refused to answer any questions about matters peculiarly within his knowledge. I stand ready to be corrected by someone who can cite the relevant law.)
 

Keith E. Carr:

Since one is not paid to testify before a court and since testifying results in some degree of inconvenience, and since sworn testimony carries with it the chance for perjury, under no circumstances ought one to testify under oath. This is especially true of public servants, who not only can refuse to testify, but who are also (ostensibly) entitled to a free paid vacation--aka, a "voluntary leave of absence"--by virtue of the fact that their testimony has been requested.

I have maintained for quite some time that we ought to do away with compelled testimony.

I think that testimony, once the backbone of evidence in court (and the necessary prerequisite for introduction of any evidence), has been showing its ragged edges lately. Modern psychology and forensic science is showing that testimony is notoriously unreliable if not downright false, even when "well-intentioned". Why should we "encourage" people to speak when they're not willing to do so? Aren't they then even less likely to tell the truth than to tell us what we want? Note: Such "encouragement" goes not only for penalties for refusal to testify, but also to such things as giving people plea bargains or reduced sentences for their testimony; jailhouse snitches have been implicated in a lot of the capital cases overturned recently for reasons that should be apparent....

I think we'd be a bit better off in the accuracy if we let people testify only if they want to (another approach would be to drop the magic talisman of "on personal testimony" and relegate such statements to supporting roles in trials), This is the 21st century. Now we have e-mails, cameras everywhere, paper and computer trails, etc, and only becoming more and more comprehensive.

The "problem" of Pleading The Fifth would then disappear as well. As noted by courts in jury instructions, you are to make no inference from the fact that someone took the Fifth. The right to not incriminate oneself wouldn't exist if the plea was a tacit admission of guilt (of something, at least). So you're not claiming anything in pleading the Fifth. Yeah, rrrrrrrriiiight...... Which is why I've suggested in the past that people ought to plead the Fifth just for chuckles on a reglar basis, just as a public service to everyone, so as to subvert this notion (fought ineffectively with some feigned diligence by courts) that the only ones that plead are crooks. Plead the Fifth so that when and if it counts, I can do so too.

That all being said, such a regime should also mean that anyone who wants to testify should be allowed to do so (with, of course, appropriate examination as necessary as to why they might be wanting such).

And of course, some considerations apply: Employment agreements and positions of responsibility in government may include requirements of transparency and disclosure (i.e., rules on permissible conduct) that may require that testimony be made available when asked. But that should be between the employer and employee (a voluntary relationship), not between the courts and the reluctant witness.

Cheers,
 

"Bart" DePalma:

The right to silence has been one of the bedrock principles of Anglo American jurisprudence since the British rebelled against the 16th century star chambers and is based on the ancient latin maxim "nemo tenetur seipsum accusare" or "no man is bound to accuse himself."

And just how, pray tell, do you reconcile that with your idea that torture is permissible?!?!?

Oh, yeah, despite the fact that waterboarding is so effective in getting people to talk (far better than taking an axe to the Fifth, I'm sure), it isn't "torture"..... Rrrrrrriiigghhht.

Cheers,
 

"Bart" DePalma becomes the sublime parody of himself:

The alternative you are proposing of suspending the right to silence for testimony before courts or Congress is the reinstitution of the star chambers where the witness was hauled in front of a tribunal with no notice of charges or what he would be asked, made to take an oath to tell the truth...

You misspelled "waterboarded". Otherwise spot-on.

Nice to see that IOKIYAR logo in mile-high letters, "Bart".

Cheers,
 

Prof. Levinson:

I am generally unsympathetic to the attacks that are regularly leveled at Mr. DePalma, but in this case I must say that I do not believe he is good faith in playing the "star chamber" card in order to defend Ms. Goodling.

Oh. I do believe you're starting to catch on. What clued you in? Could it be his egregious miscites of actual cases, or saying things that are plainly false? How about ignoring any substantive rebuttals, and then going on and heaping out the same old trash a month later as if no one said anything? No, I guess; for you, that's just rhetoric. When he gets into high hypocrisy here, so as to become a sick parody of himself, is where you draw the line. I am amased by your indulgence.....

Just a FYI, Prof. Levinson: "Bart" doesn't come up with all this nonsense himself; he cribs it. Often from the likes of Freeperville, ClownHall, or WhirledNutzDaily. He's just a cog in the RW Noise Machine, and you'll see the likes of Levin, Hannity, and Limbaugh spouting the same crapola in their venues.

Cheers,
 

If testifying were voluntary, would it be a permissible inference or presumption that such a witness is either out of his mind or is a mercenary?
 

Good heavens, this right is now embedded in nearly every democratic country and many international treaties setting forth basic rights of criminal defendants.

I join Arne in amazement, and urge Bart to get to the ER before his head explodes from cognitive dissonance.
 

Sandy,

You were really taking the muppet "Bart" seriously? Read his comments more closely. Without any legal experience, but a little experience with human beings, it is obvious that every statement he makes is simply a tactical adjustment without any basis in good-faith.

Good-faith assumes some common ground. It assumes that our goals are in common - we may disagree on methods, but at the end of the day the underlying premises are the same.

That is utterly untrue in the case of Bart and his ilk. He does not believe in liberal freedom, or democratic legitimacy. He's an ancien regime conservative; they ultimately believe in a traditional distribution of power, regardless of democratic legitimacy. Read his comments about the presidency - they're very clear on this point, that the process (and its protection of traditional power) is more important than the substance.

It is crucial to understand one's enemy. That includes an honest appraisal of their value system, and culture. Yes, giving the benefit of the doubt in light of limited evidence is an important value - but no more important than making a firm judgment on adequate (and over-adequate) evidence.

There is a problem here in academia - few academics actually recognize the ongoing threat, because very few actually have significant contact with the popular base of support for this administration. Most are from middle-class backgrounds, from technocratic families, who have spent fairly little time down in the trenches of the world. I see the same response in science - an unbelief in the real goals of the right wing movement, stemming from a lack of personal contact with these folks.

For example, somehow I got on an evangelical mailing list recently at my work address. I received a "well-done" magazine, four color, a hundred pages. (Science) people were shocked to see what the (very well funded) underlying theme was (titled Bring America Back to Religion): not just roll-back the enlightenment, but actually a roll-back the renaissance! They must have spent hundred of thousands of dollars on this mailing, reflecting a multi-million dollar organization, that literally believes that medieval culture was superior to the liberalism of the last three centuries, and even the simple rationality of the last 600 years.

How do you have good-faith, honest conversation with a group of people who truly want to revert our culture by a thousand years? Can you really call the literary production of a D'Souza anything other than vile propaganda? Does it make sense to argue with a propagandist? To pretend that such an interchange is a meaningful discussion? That any kind of meeting of the minds is possible?
 

Shag from Brookline:

If testifying were voluntary, would it be a permissible inference or presumption that such a witness is either out of his mind or is a mercenary?

As I said, if we eliminate all "incentives" to testify, at least we're not feeding the beast.

And I think it perfectly permissible to ask a witness what interest (s)he might have in testifying.

I don't suggest that only witnesses that come forth voluntarily on their own ought to testify, just that only those that are willing to testify do so.

BTW, I do see the conflict between the constitutionally guaranteed right to witnesses for one's own defence, and my thoughts above. Perhaps the solution is you can call anyone you want, but you can't make 'em talk. So you should be able to call the ones that you think are going to be helpful to you (and why call 'em otherwise?), and such witnesses should be glad to speak in your defence. Of course, anyone the prosecution calls against you, you have a right to cross.

Cheers,
 

Sandy Levinson said...

If Mr. DePalma seriously compares the Congress of the United States or criminal trials in federal courts to "star chamber," then I wonder why he isn't at least a bit sympathetic to the critics of the kangaroo "courts" (it is probably an injustice to kangaroos to link them with the alleged "legal process" going on at Guantanamo)tolerated under the MCA.

Actually, I would present that question to you in reverse. US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942).

Thus, how can you argue that a constitutional right to silence should not extend to US citizens before a court or Congress but a constitutional rights should extend to foreign unlawful enemy combatants at Gitmo? I have no problem making a distinction between and favoring US citizens over foreign enemy combatants. I cannot for the life of me understand the reverse.

I also have no trouble comparing a Congressional committee bent on abusing criminal law for partisan purposes to a star chamber.

The witness is hauled in front of a tribunal with no notice of charges or what he or she would be asked. Check.

The witness is made to take an oath to tell the truth. Check.

And if his or her right to silence is taken away as you propose, the witness is then faced the alternatives of perjury for lying, contempt of Congress for remaining silent or proving his or her own guilt by their words. Check.

If the intent of the Dems in Congress is simply to ask questions to seek the truth and not to use criminal sanctions as a partisan tool, why are they stockpiling attorneys with prosecution experience?

I stand by my characterization of these Dem congressional investigations as star chambers if your proposal to strip witnesses of their right to silence is actually carried out. All the other elements are already present.
 

If one restricts 5th Amendment rights to US nationals, then I respectfully suggest that one is arguing straight-forward constitutional positivism--i.e., that's wht our Constitution happens to guarantee US nationals--and not making an argument of principal--i.e., any just government will recognize something akin to the right against self-incrimination. Legal positivism may be correct as a method of legal interpretation; it is obviously irrelevant to arguments of general political or moral theory.
 

If one restricts 5th Amendment rights to US nationals, then I respectfully suggest that one is arguing straight-forward constitutional positivism--i.e., that's wht our Constitution happens to guarantee US nationals

It would be an odd legal positivism which ignored the plain text of the Amendment. It refers to "persons", not "US nationals".
 

In fairness to Mr. DePalma, I believe the distinction that he draws is based on unlawful enemy combatant status, not on nationality. Whether you agree or not, moral arguments certainly have been made for coerced speech based on that distinction; Alan Dershowitz' "ticking bomb" scenario comes to mind.
 

QuiteAlarmed, my friend, Mr. DePalma wrote:

now embedded in nearly every democratic country and many international treaties setting forth basic rights of criminal defendants.

Ditto the right not to be tortured.
 

quitealarmed is correct. I did not mean to imply that the 5th and 6th Amendments only apply to US citizens. I applied it to US citizens in this argument because the folks being called before Congress are citizens. Thanks for the assist.
 

Bart,

I have no problem making a distinction between and favoring US citizens over foreign enemy combatants. I cannot for the life of me understand the reverse.

Please fill me in. I seem to have missed the part where anyone proposed waterboarding Monica Goodling, or subjecting her to cold cell, long time standing or stress positions. Nor am I aware of anyone saying she should be locked away for five years and then brought before a military tribunal to face a predetermined outcome.

We oppose these things out of sincere principal because we believe basic, univeral standards of human rights forbid treating anyone in this way even terrorists and terrorism suspects. You accuse the rest of us of being hypocrits, shedding crocodile tears for Guantanamo detainees only because they are terrorism suspects.

Apparently you believe we would applaud if Congress decided to waterboard Monica Goodling. It is unfortunate for your presuppositions, but fortunate for Monica Goodling, for our country and its instutions, and for human rights and basic decency that there is zero chance of that ever happening.
 

"Bart" DePalma overstates Quirin (imagine my surprise):

[Prof. Levinson]: If Mr. DePalma seriously compares the Congress of the United States or criminal trials in federal courts to "star chamber," then I wonder why he isn't at least a bit sympathetic to the critics of the kangaroo "courts" (it is probably an injustice to kangaroos to link them with the alleged "legal process" going on at Guantanamo)tolerated under the MCA.

Actually, I would present that question to you in reverse. US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942).


Ummm, lesse. Oh, yeah:

"We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death."

Id at 44.

So, the Supreme Court said that enemy offenders shouldn't have better legal process than U.S. soldiers (and citizens) similarly situated (and this WRT the right to a petit jury trial, which the UCMJ does not offer). But don't courts martial at least allow for the defendant to choose their own counsel? And to hear the evidence against them? And to not allow evidence obtained under torture? Doesn't this argue instead that the military commissions could instead be best tried through courts martial, or though a procedure that was at the very least equivalent. Oh yeah ... that's what the court in Hamdan said....

Why "Bart" thinks the Quirin court said that enemy combatants don't have rights under the Fifth and Sixth Amendment is beyond me ... seeing as all they did was say they have no more rights than do U.S. soldiers, who are unarguably protected by the full U.S. Constitution, Bill of Rights and all...

Here's more from Quirin, in case "Bart" is still confoozed:

"Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

Id.

Cheers,
 

Enlightened Layperson said...

Bart, I have no problem making a distinction between and favoring US citizens over foreign enemy combatants. I cannot for the life of me understand the reverse.

Please fill me in. I seem to have missed the part where anyone proposed waterboarding Monica Goodling, or subjecting her to cold cell, long time standing or stress positions. Nor am I aware of anyone saying she should be locked away for five years and then brought before a military tribunal to face a predetermined outcome...Apparently you believe we would applaud if Congress decided to waterboard Monica Goodling.


:::sigh:::

When did this conversation turn to interrogation techniques? If you want to challenge my contention concerning 5th and 6th Amendment rights, please do me the privilege of actually addressing my argument and do not attribute statements to me that you damn well know I never made. I expect that sort of childishness from my resident stalker, not from most of the other folks who post here.

We oppose these things out of sincere principal because we believe basic, univeral standards of human rights forbid treating anyone in this way even terrorists and terrorism suspects.

OK, fair enough.

You accuse the rest of us of being hypocrits, shedding crocodile tears for Guantanamo detainees only because they are terrorism suspects.

When exactly did I call you or anyone else a hypocrite for disagreeing with me concerning what interrogation techniques should be used on enemy captures?

However, if you support withholding 5th Amendment rights from US citizens compelled to appear before Congress but argue that these constitutional rights should be extended to foreign enemy combatants, then I do indeed call out your hypocrisy.

If this statement does not apply to you, and I have no reason to believe that it does, then I have not called you a hypocrite and you have no reason to be offended.
 

Arne Langsetmo said...

"Bart" DePalma overstates Quirin (imagine my surprise):

OK, I will play with you for a moment.

Here is what I posted about Quirin:

Actually, I would present that question to you in reverse. US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942).

And now part of arne's unthinking assist proving my point:

arne: Here's more from Quirin, in case "Bart" is still confoozed:

"Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal."


I would add the following from Quirin to complete the Court's thought on the matter:

We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission...

To recap, I stated that foreign unlawful enemy combatants do not enjoy 5th and 6th Amendment rights.

An enemy combatant is "unlawful" and without 5th and 6th Amendment rights according to the Quirin Court "because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

I could not have said it better myself. But perhaps arne thinks the Quirin court was also overstating its own opinion.
 

Bart,

Fifth Amendment rights against self-incrimination are closely aligned to interrogation techniques. One of the main purposes of the right is to protected defendants against coercion by, ahem, "alternative" or "enhanced" interrogation. I don't think anyone here is questioning that basic right. Professor Levinson is questioning the circumstances under which it can be invoked.

In a very recent thread you mocked the hypocrits who shed "big crocodile tears" for GTMO detainees facing charges based on classified evidence but favored a special prosecutor to investigate the US Attorney firings. Today you compare denying Fifth Amendment rights in a Congressional hearing to a star chamber.

Hauling witnesses in front of a tribunal without knowing the charges or evidence against them and coercion of testimony (by more violent means than Congress has at its disposal) are part and parcel of the procedures allowed by the MCA. Even if Monica Goodling is denied the right to be silent, even if your worst suspicions of the Democrats' motives are true, Goodling, Libby and anyone else who may fall into a special prosecutor's nets have far more rights than GTMO detainees.

The only hypocrisy I see here is your failure to acknowledge these obvious facts.
 

"Bart" DePalma [to Enlightened Layperson]:

If you want to challenge my contention concerning 5th and 6th Amendment rights, please do me the privilege of actually addressing my argument and do not attribute statements to me that you damn well know I never made.

Why? You seldom if ever do that. If we're to take you as a role model, we'd ignore couter-arguments, distort what you said, just make up the "facts" that suit our purpose, and refuse to provide cites when requested to do so.

Cheers,
 

"Bart" DePalma:

Here is what I posted about Quirin:

Actually, I would present that question to you in reverse. US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942).


And I noted that the right at issue in Quirin (amongst other challenges put forth by the petitioners) was the right to a civil trial with a jury. As I noted (but which passed 40,000 feet over your head), the court said that those crimes that were triable by courts martial and for which the rules of courts martial have been found to pass muster should be sufficient for eneny offenders against such laws. After all, as the court said, if it's good enough for our soldiers, it's obviously good enough for enemies.

I would add the following from Quirin to complete the Court's thought on the matter:

"We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission..."


IOW, the procedures for trying such crimes which have applied to U.S. soldiers (which include trials by courts martial) do not offend the Constitution.

To recap, I stated that foreign unlawful enemy combatants do not enjoy 5th and 6th Amendment rights.

But the court simply stated that the procedures of courts martial do not violate the Fifth or Sixth Amendment. That's quite different from saying that any people so tried have no Fifth or Sixth Amendment rights. In fact, you are allowed, under the UCMJ, to call witnesses in your defence and to hear the charges against you, and to have the assistance of a lawyer. I would guess that the petitioners in Quirin enjoyed these rights, and that they were not at issue in the case.

An enemy combatant is "unlawful" and without 5th and 6th Amendment rights according to the Quirin Court "because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

Ummm, they haven't "violated the law of war" until they have been found to have done so by a competent tribunal. Why bother with a trial whose procedure is based on assuming that the outcome is preordained? Oh, don't bother to tell me; I know already: It's to provide the vaguest sham trappings of a trial so that people won't be up in arms about defendants being convicted without a proper trial....

But, as the court explained to all but the too-stoopid-to-understand, the reason that petit juries and civil courts were not available is that the crimes alleged were triable by military courts under their procedures, regardless of the identity of those charged (including U.S. soldiers). What is good for the goose, they said, is good for the gander.

["Bart", on the Quirin decision]: I could not have said it better myself. But perhaps arne thinks the Quirin court was also overstating its own opinion.

No. I think they said what they said. I pointed out what they said. You ignore it, and pretend they said things that they didn't say, and decided matters not at issue. See above.

Cheers,
 

Enlightened Layperson said...

Hauling witnesses in front of a tribunal without knowing the charges or evidence against them and coercion of testimony (by more violent means than Congress has at its disposal) are part and parcel of the procedures allowed by the MCA.

By tribunal, I presume you mean a Combatant Status Review Tribunal. These bodies only conduct status hearings, so there is no mystery about what is the subject matter of the proceeding. Moreover, the proceedings are explained to the capture is excruciating detail.

You may wish to review the transcript from the Combatant Status Review Tribunal just held for Khalid Sheik Muhammad.

Goodling, Libby and anyone else who may fall into a special prosecutor's nets have far more rights than GTMO detainees.

I never said they did not. This is as it should be. What I pointed out was the hypocrisy of the proposal to strip the right to silence from Ms. Goodling after advocating extension of constitutional rights to the Gitmo prisoners.
 

Arne Langsetmo said...

And I noted that the right at issue in Quirin (amongst other challenges put forth by the petitioners) was the right to a civil trial with a jury.

This is incorrect. The right to a jury trial was just the primary point of contention, not the only point. Here is how the Quirin Court summarized the Plaintiff's argument:

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses.

In short, the petitioners in Qurin were demanding a criminal trial in a federal court with all the 5th and 6th Amendment rights of a civilian criminal defendant. This demand was rejected by the Supreme Court.
 

"Bart" DePalma:

Learn to freakin' read!

[Arne Langsetmo]: And I noted that the right at issue in Quirin (amongst other challenges put forth by the petitioners) was the right to a civil trial with a jury.

This is incorrect. The right to a jury trial was just the primary point of contention, not the only point....


Nor did I say so. Are you really that much of an eedjit that you can't understand written English?!?!?

There were other challenges put forth by the petitioners, including against the president's legal authority to order the commissions. I noted that. You ignored it or you were too stoopid to understand it. But in the part of the opinion we're talking about, they were asserting their right to a civil trial by jury, notwithstanding any presidential authority to order commissions.

Here is how the Quirin Court summarized the Plaintiff's argument:

"Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses."


Yes, they challenged the president's legal authority to order the trials by commission (leaving, they argued, jury trials by civil courts or nothing). They claim this privilege based on the right to trial by jury in the BoR. The Quirin court, in considering their habeas petition and ruling against them on the merits, rejected the contention of the petitioners as to the authority of the president in the first part of the opinion. That has nothing to do with the rights in the Fifth or Sixth Amendment, such as the right against self-incrimination, right to a lawyer, etc..

In short, the petitioners in Qurin were demanding a criminal trial in a federal court with all the 5th and 6th Amendment rights of a civilian criminal defendant. This demand was rejected by the Supreme Court.

True. But rejecting their request for a jury trial (which is not available in courts martial) is hardly a statement that they have none of the rights afforded by the BoR and the Constitution. They stated this early:

"Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty."

Id at 25.

I'd note that the right "[not to] be deprived of life, liberty, or property, without due process of law; [and against] private property be[ing] taken for public use, without just compensation" are unarguably not affected by which crimes were commonly tried in common law courts, and thus remain in effect for all protected by the U.S. Constitution (see below). I'd note further that it's only "except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger" that the right to jury trial is left out of the Fifth amendment, as the Quirin court also noted. The second through fourth clause of the Fifth Amendment are arguably semantically separate, and it's not held in the Quirin decision that any rights at trial specified there are similarly affected by which crimes are triable in common law courts (for the good reason that these weren't at issue).

After they said that the president had authority to order the commissions, they considered the question of whether, given that authority, the constitution (and in particular, the Fifth and Sixth Amendments) forbids such trial by commissions for the crimes at bar. They went on for a whole paragraph explaining to you and sundry that the right to a trial by jury is not an absolute:

"The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. Callan v. Wilson, 127 U.S. 540, 549, 8 S.Ct. 1301, 1303. Hence petty offenses triable at common law without a jury may be tried without a jury in the federal courts, notwithstanding Article III, 2, and the Fifth and Sixth Amendments. Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 1 Ann.Cas. 585; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660. Trial by jury of criminal contempts may constitutionally be dispensed with in the federal courts in those cases in which they could be tried without a jury at common law. Ex parte Terry, 128 U.S. 289, 302, 304 S., 9 S.Ct. 77, 79; Savin, Petitioner, 131 U.S. 267, 277, 9 S.Ct. 699, 701; In re Debs, 158 U.S. 564, 594-596, 15 S.Ct. 900, 910, 911; United States v. Shipp, 203 U.S. 563, 572, 27 S.Ct. 165, 166, 8 Ann.Cas. 265; Blackmer v. United States, 284 U.S. 421, 440, 52 S.Ct. 252, 255; Nye v. United States, 313 U.S. 33, 48, 61 S. Ct. 810, 815; see United States v. Hudson and Goodwin, 7 Cranch 32, 34. Similarly, an action for debt to enforce a penalty inflicted by Congress is not subject to the constitutional restrictions upon criminal prosecutions. United States v. Zucker, 161 U.S. 475, 16 S.Ct. 641; United States v. Regan, 232 U.S. 37, 34 S. Ct. 213, and cases cited.

"All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, 2 or the provisions of the Fifth and Sixth Amendments relating to 'crimes' and 'criminal prosecutions'. In the light of this long-continued and consistent interpretation we must concluded that 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts."

Id at 39-40.

And then they said (and this you keep ignoring):

"Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal.

"We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of the Articles of War punishable by death. [...] We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury."

That's what was at issue in that part of the opinion, and that was the holding and their rationale, "Bart".

It is the nature of the crime that allows it to be tried by military commission, and this is proved in part by the fact that we can try our own servicemen in like fashion with no insult to the Constitution.

To reiterate (from above in the opinion):

"But as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury." Id at 29.

Your claim that "US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942)" is simply not true.

I don't know how the Quirin court could have been any plainer about it.

I stand by my remarks and conclude that you couldn't argue your way out of a paper bag if you were given a Zippo and and instruction book.

Cheers,
 

Further proof that "Bart" just doesn't 'get it':

[Enlightened Layperson]: Hauling witnesses in front of a tribunal without knowing the charges or evidence against them and coercion of testimony (by more violent means than Congress has at its disposal) are part and parcel of the procedures allowed by the MCA.

By tribunal, I presume you mean a Combatant Status Review Tribunal.


No, "Bart", guess again. Because that's all that you're doing, "Bart". Maybe you'll get it right, seeing as there are only two possible answers.

Cheers,
 

"Bart" DePalma:

What I pointed out was the hypocrisy of the proposal to strip the right to silence from Ms. Goodling after advocating extension of constitutional rights to the Gitmo prisoners.

No one is proposing "stripping" her of that right. All that people are saying is that she should have exactly the same 'right to silence' as everyone else has, and as the courts have laid out that right. If she truly is in jeopardy of self-incrimination, she may remain silent as to any statements or subjects implicated by such. The courts have never held that one has an absolute right to silence, or that one is exempted from testifying if one is of the opinion that one is being persecuted by some "Star Chamber" type inquisition.

Cheers,
 

Following up, I said:

The courts have never held ... that one is exempted from testifying if one is of the opinion that one is being persecuted by some "Star Chamber" type inquisition.

If she believes that the questions being asked are not properly within the authority of the questioners, she (or her lawyer) may object to that as to any such questions, and then let the chips fall where they may.

Cheers,
 

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