James Leroy Wilson's blog

Friday, January 07, 2005

Civil Liberties and Enemy Combatants

More evidence that our "checks and balances" in which the Supreme Court protects us from Presidential over-reach is just window dressing. Harvey Silverglate writes:

In Hamdi O’Connor wrote that while an alleged enemy combatant “must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker,” the degree of due process would be commensurate with “the nature of the case.” Because of the ongoing war on terrorism, “the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.” O’Connor said hearsay might be admissible, for example, when direct evidence was not readily available.

And since the government might find it burdensome, or at least inconvenient, to present a powerful factual case justifying a detention, the Court’s flexible due process standard “would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal [by the detainee] were provided.” This is a remarkable concession to the government. In a normal criminal proceeding, a defendant enjoys a “presumption of innocence” that can be overcome only by evidence proving guilt “beyond a reasonable doubt.” In a civil proceeding, the side that produces a “preponderance of the evidence,” showing that its story is more likely than not to be true, wins. But in an enemy combatant hearing as outlined by O’Connor, the government enjoys a blanket presumption in its favor.

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