How did the ACLU miss Kris' declaration that they were three peas in a pod?
Point? The ACLU keeps doing cartwheels (here most recently) on "due process" out of the mouth of David Kris of the Justice Dept.
More important than that fleeing moment was Lindsey Graham's exchange. That needs to be paid attention. He brings up the Due Process issue to Kris.
And how does anyone have Due Process with "the totality of the circumstances test"?
Does no one get that?
Let's be really clear that Kris supports that, he even said so in his final remarks to Levin.
MacDonald talked about the totality of circumstances test. He brought it up, "And I am worried that a military judge that has a voluntarism imposed on him is going to look at a statement taken when a soldier goes in and breaks down the door and -- and takes a-takes a statement from a detainee, I'm worried that they're going to apply a voluntariness standard to it and I would argue that's an inherently coercive environment -- when you have a rifle [. . .] pointed at you. I'd rather see this leading to a totality of circumstance [. . . determining] is the statement reliable?"
Remember that they're speaking of military commissions. Not civilian courts.
Point, this test is also being brought up by Senator Graham (and I know Lindsey and I've known him for years) deals with confessions. That's why Lindsey is bringing it up. And Lindsey knows the law including military law. (I don't agree with his conclusions which are often scary, but he does know the law.) The totality test goes directly to confessions. The totality test determines whether or not a confession is admissible. You're looking at not just a claim that the confession was forced or otherwise inappropriate, you're looking at "the totality" including whether or not it'll allow for a conviction.
The totality test was utilized to determine whether the confession of a suspect could be admissible? Were rights violated? Was a defendant misled or forced? But a "yes" on those or any other violations didn't necessarily kick out under the "totality" argument.
So when Kris supports a totality test (and he supports it -- he made that clear, on his own accord, in his final replies to Carl Levin), there's no Due Process. That's ridiculous to imagine otherwise. The totality test is why the country needed Miranda. Are we unaware of who supports totality? That's Rehnquist's decision. Do we not get that? Do we not get that Rehnquist pushed that in civilian courts (specifically when he wrote the majority opinion in Illinois v. Gates) in terms of judging search warrants?
Brennan and Marshall dissented and their dissent was based on the fact that a better means was being shoved aside (the Aguilar-Spinelli test) in order to simplify. Simplify for whom? Not the defense. Not in a Rehnquist decision. Their dissent, written by Brennan, noted that the totality test "reflects impatience with what it perceives to be overly technical rules governing searches and seizures under the Fourth Amendment."
Oh, that overly technical Fourth Amendment!
Do we all not get that when the Constitution is just "too technical" for some, that group doesn't support Due Process?
Not noted by the ACLU is that Kris supports "indefinite detention" and, when questioned on that by Graham Tuesday, corrected Lindsey to say, "I'm not sure that dangerous is even part of the initial judgment under the law." Lindsey quickly agreed, "That's true, it's not required." On "indefinite detention," Kris wanted it pointed out that you don't need a judgment from a court that the person is "dangerous" to continue to imprison them.
With Kris nodding while MacDonald was speaking, MacDonald would declare that when US forces are breaking "down doors," "we don't want them to stop and think about giving Miranda rights or giving Article 31 B rights under UCMJ."
Article 31 predates Miranda and outlines for the military the guidelines to questioning a suspect and what the suspect must be informed of.
Levin continued questioning MacDonald -- whom Kris agrees with -- about the totality test and MacDonald agreed confessions obtained under torture would be inadmissible; however, "I'm talking about some level of coercion below" torture. So coerced confessions would be admissible. And let's remember how damn difficult it is to get even torture labeled as such by the US courts. So, in other words, what international bodies consider torture, what anyone with common sense considers torture, it would be allowed due to the totality test. Those confessions would be allowed to be entered as evidence. That's not Due Process and the ACLU should know that so we'll just assume they didn't follow the entire first panel. Or worse, that they felt they needed to toss out a compliment and went with Kris. Kris didn't earn any compliment.
Wait, some will whine, you're talking about MacDonald above. Yes, and Kris follows him telling Levin how much in agreement they are how he supports the totality that MacDonald was just speaking of and how the administration's views are "very similar to what Admiral MacDonald was talking about."The only witness that deserved praise was on the second panel, Retired Rear Admiral John Hutson. If you missed the hearing -- and the ACLU appears to have missed it as evidenced by their mistaken praise for Kris -- Huston's opening statement is [PDF format warning] posted online by the committee and it can be found in HTML (what you're reading right now, normal webpage) at Franklin Pierce Law Center where is the Dean and President. He was the only one that deserved praise. Like the ACLU, his position is that the military commissions are not workable. So instead of praising Kris who doesn't believe in Due Process (as he made clear in his long form answers) and doesn't believe in the Fourth Amendment and is in agreement with right-wing fanatic Rehnquist (now thankfully departed), the ACLU should have been noting Hutson's statements.
It's over, I'm done writing songs about love
There's a war going on
So I'm holding my gun with a strap and a glove
And I'm writing a song about war
And it goes
Na na na na na na na
I hate the war
Na na na na na na na
I hate the war
Na na na na na na na
I hate the war
Oh oh oh oh
-- "I Hate The War" (written by Greg Goldberg, on The Ballet's Mattachine!)
Last Thursday, ICCC's number of US troops killed in Iraq since the start of the illegal war was 4321. Tonight? 4322. In tomorrow's gina & krista round-robin, four doctors have columns about PTSD and explaining how idiotic Thomas E. Ricks and his unnamed friend are. I'd said we might grab that issue again for tonight and planned to until two friends e-mailed their comments. They gave permission for them to run in the round-robin and they recruited two more to write on the topic. The topic's well covered, far better than I could do, so we grabbed the military commissions and the ACLU instead.
The e-mail address for this site is firstname.lastname@example.org.
i hate the war