The US Supreme Court ruled recently that denying the Gitmo prisoners right to fear hearing was against the law and it had now created an interesting situation for the american government. A pressing issue in the american conscience is whether these prisoners should be allotted the same constitutional rights as normal citizens or are they already guilty without proof or evidence presented to the general public?

In our long history, America has been plagued by witch hunt manias dating back from the founding colonies with the Salem witch trials horrors, the suspension of Habeus Corpus by Abraham lincoln with the arrest of southern sympathizers, the McCarthyian Red Scare of the 1950's, and now the terrorist hunt. did they have cause to fear such people during their respected eras, perhaps in some cases. Yet, witch hunts have not been suitable for real identification of threats for a long time. They build on paranoia and infest our conscious mind with rumors and inuendoes that cultivated a fear that should not be there.

During the McCathyian era, Gay writers and directors were arrested from their Hollywood life due to their perceived redness due to their homosexual activity. Was there any connection with those two subjects? Absolutely not, but our fears lead us into directions we never dreamed of. Social scapegoats are used to attack an enemy we can actually see and face.

How about suspected terrorist? I do not know, the evidence has not been presented and the conditions of their detainment has not been addressed. Is it right? I can not answer that either, since I was afflicted by the same fear and paranoia that has afflicted most of Americans. My fears are that this fear may devolve into wild accusations and create something unintended as it has done in many other occasions.

So what is your thoughts?

........During the McCarthy era, writers, directors and actors/actress's were banned from working for the Hollywood studios for their precieved association with or their views on Communism. Even if they were only innocent participents attending a party or forum disscussion. Many 'false accusations" unjustly stigmatized many innocent people, 'cofessions' that were coerced from overzealous prosecutors. Although many gays were caught up in this hysteria, they were not the targets.

As I said "our fears lead us in directions we never dreamed of".

Gay writers, actors, and others working in hollywood were banned and arrested/tried in certain cases in the court of public opinion by hearings. More or less due to Roy Cohn (he was also a closet homosexual, which made this tragedy more personal) work with McCarthy.

I do not know if such a duality is right or wrong. I agree that for security reasons we have to lock some people away, but how far can we go before we start making mistakes. It makes ethics and morality harder to maintain, when you do not know if you can honestly do something like that.

For those that answer "It depends on the evidence", you've fallen into a logical fallacy. There can be no 'evidence' properly reviewed without a trial. Being held without a trial, these folks never get their evidence reviewed by a court, only by the prosecutors building the case against them. In many cases the most evidence they have are the 'confessions' gleaned from these people following days of torture. Torture anyone enough and they'll tell you exactly what you want to hear just to get the torture to stop.

That's why the Spanish Inquisition loved torture after all.

I have no problem locking terrorist fighters away for the rest of their lives. Heck, I have no problem executing them either. What I have a problem with is holding them without having given them a fair trial. We are a nation founded on laws. To ignore our laws and customs with anyone, citizen or not, enemy or friend, we become less than Americans, we become our enemy and our enemies win by destroying what it means to be an American.

It can never be quoted enough, especially as we come up on the fourth of July, our Declaration of Independence:



It does not say "All Americans", it says "all men are created equal". Whether American or foreign, terrorist or British, all men are equal in their creation. They possess certain inalienable rights that should only be taken away with the full due process of law. Our law, our Justice.

The War on Terror is not just a war of armies and bombs. It is a war of concepts and ideals. Al-Quaeda fights not just against our soldiers and our citizens, but on our way of life, our system of justice, and what it means to be an American. That is what they hate more than our armies and our technological bombs. When we change what it means to be an American, when we renege on our system of laws and our system of justice, when we thumb our noses at our very own Declaration of Independence, Al-Quaeda laughs and jumps in joy at their victory for they have forced us to change what it means to be an American. They have forced us to become more like them, and they win a victory against us.

I support DK's comments.
We live, fortunately, in a society (the western countries at least !) based on laws. Our ancestors and our fathers fought for that and died for that. The laws are based on Constitutions, approved democraticaly by the People. From Nobody and Never should exceptions be accepted against these fondamental rules. "Dura lex sed lex" (The law may be hard, but It is the Law).
Thats my point of view and I will ever be opposed to those who consider that safety justifie to break the law.
Old bob, an old fighter for Democracy and a Legality.

Dan is right, evidence without observation or acknowledgment can not be deemed as evidence. It might just be hearsay. As I said, the line can get blurred very quickly, imagine a conversation like this:

Dan: Hey Bob, I think this fella seems very un-American!
Bob: He said something about shooting up his office building, because he hates working there.
Dan: Yeah that sounds suspicious, I remember him telling me his uncle or something was in the army, so he might have guns and stuff.
Bob: Yeah, I heard from a friend his cousin had converted to Islam
Dan: wow, I heard the same thing from a friend's friend. We got to tell the CIA and get his ass hauled off to some secure location and make sure he does not do anything.

Evidence in such a case is basically here say. Where is the facts and proof.

May be I'm too old and my neurones too tired, but I dont understand your post. What do you mean with that ? The normal sequel of such a conversation whould be to begin a normal investigation (FBI or else) respecting all the rights of the person, following the normal procedure (even the one in case of emergency). Where is the problem ? Perhaps I dont know enough the procedures and practice in the States. But in my country, the law is clear : to protect the citizens and respect the rights of the accuseds. Both are important and the law alloy it. It seems that USA has another practice (?).

Well, hearsay is basic legal term for the non-substantiated claims or second hand accounts of witness testimony. This type of evidence is usually not admissible in court due to problems with referencing or circumstantial evidence, but certain things such as terrorist suspicions based on claims from "reliable" contacts have been used to counter this argument. Admittedly, the WMD or weapons of mass destruction intelligence was also based on heresay evidence.

Secondary source evidence or hearsay can be used in civil proceeding, but not in criminal cases unless "justice is served" through such use under the 2003 act in the US on hearsay evidence.

I have been studying a bit of law to be for graduate school, so basically I am sharpening my shark teeth right now!

Thanks for the answer !
For me, one point is now clear. The Justice laws and practice in the States are quite different from what I have here in my country . I'm happy to live here and not there .
I will come back to you when I have other questions about US Justice law (for instance, is it right that "bargain is an important part of it ?)
Have a good day (its 10 am here)
Old Bob

Well, US law is based of English law, so I guess the British readers and authors might be able provide you with a better European point of reference than I could.

(by the way, I spelled hearsay wrong twice; it was not heresay, but hearsay, which makes a bit more sense. I stand corrected on spelling.)

How does European laws work in prosecuting and arresting suspected terrorist?

I can just answer for my country (Switzerland). The country is a Confederation, organized in 24 cantons. We have a federal law and each canton has its application rules and its police. The fight against suspected terrorists is committed to a special federal police, which has to coordinate the efforts of the cantonal polices, and conduct also its own investigations in cooperation with the polices of neighbor countries. If the crime was committed in another country, the arrested is delivered to the justice authorities of this country, with the exception that Swiss citizens must be judged and condemned in Switzerland. The cases are always brought to a normal cantonal tribunal, judged on the base of the "normal" regular law (which includes the cases of terrorism). Infiltration of presumed terrorist groups and listening tel communication can only be done if ordered by a judge.
If the police suspects someone, he can be arrested but must be presented to a judge within 48 hours and has the right to commit a advocate at the same time. It is the judge who decide then if he remains or not in jail.
There is no exception rules ("no man's land" law) like you have in the States.
I also must say that our country was seldom the target of terrorist acts. The main point of the present investigations is the fight against financing of terrorist organisations through swiss channels.
Old Bob (who was active in this last fight ! (not in the financing )

Basically heresay is any statement (i.e. a statement not made by the witness) used to prove the truth of what the statement asserts.

For example, Jane tells Bob she killed Frank. Bob can't testify that Jane told him she killed Frank, because he didn't make the statement, it's heresay. Heresay is rooted in English common law but there are many long-established exceptions to the heresay rule. Heresay can be admitted into court if it is not being used to prove the truth of what the matter it is asserted. For example, say Jane testifies on the stand she never talked to Bob about the murder, Bob could then use the statement by Jane not to prove that she killed Frank, but to prove they actually talked. There's also the excited utterance, deathbed confession, more than I would want to get into without putting anyone to sleep.

There's an additional protection that the U.S. constitution provides to criminal defendants, it's called the Confrontation Clause. It's in the 6th amendment, it basically says the accused has the right to face his or her accuser. What that basically means is that any testimonial statement (i.e. "Jane killed Bob") in a criminal trial being used against a defendant, the statement must be made in open court in an adversarial proceeding.


All of the commonwealth countries (i.e. the countries that once formed the British Empire) use the common law system of jurisprudence, where law is built over centuries via precedent decided in previous cases (unless superceded by statue or the constitution, but England of course does not have an actual constitution, unless you count the Magna Carta). The common law was started about 800 or so years ago by King Henry the VII as a way to solidfy control over England. Before the common law, there were courts scattered around England that dispensed justice in different ways. King Henry discovered that if he put his own courts all around the country that dispensed "common law" the people would flock to his courts instead of those of the dukes and he'd have more credibility.

In Europe, they use the civil law system, which is basically based on statue with less reliance of precedent.

That can't be right. People are convicted all the time partly based on "jailhouse confessions." One inmate testifies that he heard another inmate admit to the crime. Now how much credence one ought to give an inmate witness in such a circumstance is certainly a matter for consideration, but such testimony is in fact used, as far as I know.

As to your example, Bob can't testify that Jane did the murder. That would be hearsay. And if Bob told Fred that Jane confessed, then Fred couldn't testify to that. That's hearsay, again.

As for "heresay," that can be used in heresy trials.