By MORRIS D. DAVIS
New York Times
Arlington, Va.
LINDSEY GRAHAM, a Republican senator from South Carolina, is right: “The image of Guantánamo Bay and the reality of Guantánamo Bay are completely different.” It is disappointing that so many embrace a contrived image. Reality for Guantánamo Bay is the daily professionalism of its staff, the humanity of its detention centers and the fair and transparent nature of the military commissions charged with trying war criminals. It is a reality that has been all but ignored or forgotten.
The makeshift detention center known as Camp X-Ray closed in early 2002 after just four months of use. Now it is overgrown with weeds and serves as home to iguanas. Yet last week ABC News published a photo online of Camp X-Ray as if it were in use, five years after its closing.
Today, most of the detainees are housed in new buildings modeled after civilian prisons in Indiana and Michigan. Detainees receive three culturally appropriate meals a day. Each has a copy of the Koran. Guards maintain respectful silence during Islam’s five daily prayer periods, and medical care is provided by the same practitioners who treat American service members. Detainees are offered at least two hours of outdoor recreation each day, double that allowed inmates, including convicted terrorists, at the “supermax” federal penitentiary in Florence, Colo.
Standards at Guantánamo rival or exceed those at similar institutions in the United States and abroad. After an inspection by the Organization for Security and Cooperation in Europe in March 2006, a Belgian police official said, “At the level of detention facilities, it is a model prison, where people are better treated than in Belgian prisons.”
Critics liken Guantánamo Bay to Soviet gulags, but reality does not match their hyperbole. The supporters of David Hicks, the detainee popularly known as the “Australian Taliban,” asserted that Mr. Hicks was mistreated and wasting away. But at his March trial, where he pleaded guilty to providing material support to a terrorist organization, he and his defense team stipulated he was treated properly. Mr. Hicks even thanked service members, and as one Australian newspaper columnist noted, he appeared in court “looking fat, healthy and tanned, and cracking jokes.”
Some imply that if a defendant does not get a trial that looks like Martha Stewart’s and ends like O. J. Simpson’s, then military commissions are flawed. They are mistaken. The Constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under Common Article 3 of the Geneva Conventions, which ensures they are afforded “all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Justice John Paul Stevens, in the Hamdan decision that rejected an earlier plan for military commissions, observed that Article 75 of the Additional Protocol to the Geneva Conventions defines the judicial guarantees recognized as indispensable. A comparison of Article 75 and the Military Commissions Act of 2006 shows military commissions provide the fundamental guarantees.
Each accused receives a copy of the charges in his native language; outside influence on witnesses and trial participants is prohibited; the accused may challenge members of the commission; an accused may represent himself or have assistance of counsel; he is presumed innocent until guilt is established beyond a reasonable doubt; he is entitled to assistance to secure evidence on his behalf; he is not required to incriminate himself at trial and his silence is not held against him; he may not be tried a second time for the same offense; and he is entitled to the assistance of counsel through four stages of post-trial appellate review ending at the United States Supreme Court.
One myth is that the accused can be excluded from his trial and convicted on secret evidence. The administrative boards that determine if a detainee is an enemy combatant and whether he is a continuing threat may consider classified information in closed hearings outside the presence of the detainee. But military commissions may not. The act states, “The accused shall be permitted ... to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing.” Unless the accused chooses to skip his trial or is removed for disruptive behavior, he has the right to be present and to confront all of the evidence.
Many critics disapprove of the potential admissibility of evidence obtained by coercion and hearsay. Any statement by a person whose freedom is restrained by someone in a position of authority can be viewed as the product of some degree of coercion. Deciding how far is too far is the challenge. I make the final decision on the evidence the prosecution will introduce. The defense may challenge this evidence and the military judge decides whether it is admitted. If it is admitted, both sides can argue how much weight, if any, the evidence deserves. If a conviction results, the accused has the assistance of counsel in four stages of post-trial appellate review. These are clearly robust safeguards.
The Military Commissions Act says hearsay is admissible unless it is challenged. The party raising the challenge must persuade the military judge that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the commission, among other reasons. While this standard permits admission of some evidence that would not be admissible in federal courts, the rights afforded Americans are not the benchmark for assessing rights afforded enemy combatants in military tribunals.
There is no ban on hearsay among the indispensable rights listed in the Geneva Conventions. Nor is there a ban on hearsay for the United Nations-sanctioned war crimes tribunals, including the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone. The Nuremberg trials also did not limit hearsay evidence. Simply stated, a ban on hearsay is not an internationally recognized judicial guarantee.
Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.
Showing posts with label crime. Show all posts
Showing posts with label crime. Show all posts
Monday, September 10, 2007
Let parents hold the remote
Congressional restrictions on violent television programming are unnecessary and would be unconstitutional.
By Laurence H. Tribe, LAURENCE H. TRIBE is a professor of constitutional law at Harvard Law School. He is testifying today on this subject before Congress on behalf of broadcasters, cable operators and Hollywood studios.
June 26, 2007
THIS WEEK, Congress will once again consider what to do about the perceived threat to children from television violence.
Unfortunately, some lawmakers seem tempted by the idea of deeper government involvement in what television can show. The Federal Communications Commission, for instance, suggests that Congress should "time channel" certain shows to late-night time slots, implement government-run ratings or compel the segregation of more-violent programs to premium channels.
But speech restrictions such as these would be grave mistakes — mistakes that courts are unlikely to tolerate. The better approach is for Congress to empower parents — not government — to control what TV programs are appropriate for children to watch.
Depictions of violence have long figured importantly in all media. That a program displays violence cannot automatically trump its positive social value. The Old Testament is often violent, as are "Hamlet," news coverage of war and many of our best television dramas. Depictions of violence and its consequences can contribute powerfully to a show's portrayal of our often violent world, and violence — however disquieting — can add a level of meaning that is achievable in no other way.
Even the staunchest critics of TV violence must concede that only certain depictions cause real concern. But letting government decide which depictions threaten children's welfare (and therefore should be labeled or otherwise restricted or segregated) is both unconstitutional and unwise. For starters, any definition of impermissibly violent television programming will be so vague that people must "guess at its meaning and differ as to its application" — a violation of due process, as the Supreme Court held more than 80 years ago. To test just two proposed definitions, is an abusive interrogation of a suspect on "24" patently offensive? Is a depiction of the Normandy landing in a television showing of "Saving Private Ryan" excessive? Who knows?
All vague prohibitions are unconstitutional, but vague regulations of speech are particularly troubling. They "chill" valuable expression as everyone tries to avoid any speech that risks penalty — even if that speech is not actually illegal. And vague laws give regulators and prosecutors leeway to restrict speech in ways that reflect their own predilections.
EQUALLY DANGEROUS, those who want to regulate televised violence are generally responding less to the violent content itself than to what particular depictions say about using violence. But the 1st Amendment clearly prohibits government regulation based on the viewpoint speech expresses: Congress is forbidden to target speech voicing a "disapproved" message about violence (like a show admiringly portraying a mobster's violent rise through the ranks) while exempting "approved" speech on the same subject (like a show condemning a drug dealer's mayhem).
It's tempting to relax these standards when government restricts speech for children's sake, but that turns the 1st Amendment upside down. If anything, children's impressionable nature cuts against government dictating what they see or learn. Why else fight about teaching evolution?
Time channeling prevents parents and children alike from watching televised violence except during specified times, thus unconstitutionally requiring adults to view only programming "suitable" for youngsters. Likewise, compelling cable TV operators to offer more violent networks on an "a la carte" basis would also violate the 1st Amendment. Finally, even assuming the worst about how television violence affects young children, the interests Congress is trying to serve are too at odds with one another to meet the high court's standards. Our interest in protecting children from frightening material, for example, would suggest that depictions of violence should be cartoonish and sanitized — but that would undercut the asserted interest in making children understand the consequences of violence and avoiding material that some fear children might imitate. And even the strongest proponents of government control would likely tolerate violence on news and sports programs, even though that seems at least as likely to cause the very effects the proponents seek to prevent.
As a father and grandfather, I share the worries of other parents about what their children watch on TV. But it is in my role as a parent and grandparent — not just a scholar — that I write here.
We should resist moves by government to control the upbringing of our children. The Supreme Court has repeatedly recognized that more narrowly tailored measures, intended solely to facilitate parental control, are less restrictive of speech and should be invoked even when centralized government regulation might be more effective.
Fortunately, parents today have more options than ever to control what their children see on television, from the V-chip to time-shifting technologies to voluntary ratings systems. We should not bypass them on the easy but treacherous path to censorship.
By Laurence H. Tribe, LAURENCE H. TRIBE is a professor of constitutional law at Harvard Law School. He is testifying today on this subject before Congress on behalf of broadcasters, cable operators and Hollywood studios.
June 26, 2007
THIS WEEK, Congress will once again consider what to do about the perceived threat to children from television violence.
Unfortunately, some lawmakers seem tempted by the idea of deeper government involvement in what television can show. The Federal Communications Commission, for instance, suggests that Congress should "time channel" certain shows to late-night time slots, implement government-run ratings or compel the segregation of more-violent programs to premium channels.
But speech restrictions such as these would be grave mistakes — mistakes that courts are unlikely to tolerate. The better approach is for Congress to empower parents — not government — to control what TV programs are appropriate for children to watch.
Depictions of violence have long figured importantly in all media. That a program displays violence cannot automatically trump its positive social value. The Old Testament is often violent, as are "Hamlet," news coverage of war and many of our best television dramas. Depictions of violence and its consequences can contribute powerfully to a show's portrayal of our often violent world, and violence — however disquieting — can add a level of meaning that is achievable in no other way.
Even the staunchest critics of TV violence must concede that only certain depictions cause real concern. But letting government decide which depictions threaten children's welfare (and therefore should be labeled or otherwise restricted or segregated) is both unconstitutional and unwise. For starters, any definition of impermissibly violent television programming will be so vague that people must "guess at its meaning and differ as to its application" — a violation of due process, as the Supreme Court held more than 80 years ago. To test just two proposed definitions, is an abusive interrogation of a suspect on "24" patently offensive? Is a depiction of the Normandy landing in a television showing of "Saving Private Ryan" excessive? Who knows?
All vague prohibitions are unconstitutional, but vague regulations of speech are particularly troubling. They "chill" valuable expression as everyone tries to avoid any speech that risks penalty — even if that speech is not actually illegal. And vague laws give regulators and prosecutors leeway to restrict speech in ways that reflect their own predilections.
EQUALLY DANGEROUS, those who want to regulate televised violence are generally responding less to the violent content itself than to what particular depictions say about using violence. But the 1st Amendment clearly prohibits government regulation based on the viewpoint speech expresses: Congress is forbidden to target speech voicing a "disapproved" message about violence (like a show admiringly portraying a mobster's violent rise through the ranks) while exempting "approved" speech on the same subject (like a show condemning a drug dealer's mayhem).
It's tempting to relax these standards when government restricts speech for children's sake, but that turns the 1st Amendment upside down. If anything, children's impressionable nature cuts against government dictating what they see or learn. Why else fight about teaching evolution?
Time channeling prevents parents and children alike from watching televised violence except during specified times, thus unconstitutionally requiring adults to view only programming "suitable" for youngsters. Likewise, compelling cable TV operators to offer more violent networks on an "a la carte" basis would also violate the 1st Amendment. Finally, even assuming the worst about how television violence affects young children, the interests Congress is trying to serve are too at odds with one another to meet the high court's standards. Our interest in protecting children from frightening material, for example, would suggest that depictions of violence should be cartoonish and sanitized — but that would undercut the asserted interest in making children understand the consequences of violence and avoiding material that some fear children might imitate. And even the strongest proponents of government control would likely tolerate violence on news and sports programs, even though that seems at least as likely to cause the very effects the proponents seek to prevent.
As a father and grandfather, I share the worries of other parents about what their children watch on TV. But it is in my role as a parent and grandparent — not just a scholar — that I write here.
We should resist moves by government to control the upbringing of our children. The Supreme Court has repeatedly recognized that more narrowly tailored measures, intended solely to facilitate parental control, are less restrictive of speech and should be invoked even when centralized government regulation might be more effective.
Fortunately, parents today have more options than ever to control what their children see on television, from the V-chip to time-shifting technologies to voluntary ratings systems. We should not bypass them on the easy but treacherous path to censorship.
Saturday, July 07, 2007
Back Where They Belong
NYT
Gov. M. Jodi Rell vaulted Connecticut to the forefront of the juvenile justice reform movement when she signed a bill that removes 16- and 17-year-old offenders from the adult courts and puts them back into the juvenile justice system where they clearly belong. This new law comes in response to studies showing that children who do time in adult jails are more likely to become hardened criminals — and to commit more violent crime — than youthful offenders who are handled by the juvenile system.
The rush to try children as adults began in the early 1990s, after high-profile crimes like the Central Park jogger case, in which a young woman was badly beaten and raped in New York’s Central Park. Extreme violence and sexual assault clearly merit severe punishment. But today, in too many states, young people are routinely tried as adults, even those who commit nonviolent offenses.
In adult jails, these youthful offenders have little protection from being battered or sexually assaulted. Even those who leave jail determined not to go back, find that a conviction in adult courts closes off their chances for finding decent jobs.
After Connecticut’s law takes effect, New York and North Carolina will be the only two remaining states that automatically transfer 16-year-olds who commit crimes to adult courts. Unfortunately, nearly every state has laws that encourage prosecutors to try children as adults. The country needs to abandon these failed, destructive policies.
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