Friday, March 04, 2005

Shifting the burden of proof.

The Washington Post had an article the other day about the fact that the Arab guy charged with plotting to assasinate the President bears the burden of proving that is not a danger and can be released o bail. As the article notes, this is a sea-change in criminal procedure because, for most of our legal history, it has been the government which has borne the opposite burden: proving that the accused IS a risk. I must admit that I am not sure how I feel about this change.

The change was brought about by Sec. 6951 of the Intelligence Reform and Terrorism Prevention Act of 2004 . If you search by that section, you will see a very short section amending 18 U.S.C. 3142(e)-(f) . The text of Sec. 6951, to be quite honest, provides absolutely no clue to what the amendment effectuates. Had you been a Congressman reading the bill for the first time, it would have taken you a bit of research to figure that out. Try it for yourself.

Assuming you don't have the time for this little exercise, here's the relevant amended text of 3142:
If, after a hearing...the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial...Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is 2332b of title 18 of the United States Code.

Section 2332b of title 18is the section that defines acts of terrorism. Thus, in short, if a person is accused of an act of terrorism and a judicial officer finds that they are a risk to the community, they will be jailed prior to trial. The only way they can be released is by proving they are not a risk.

So here's my issue. I'm generally a pretty rabid supporter of individual civil liberties. I find the USA Patriot Act to be an abhorrent piece of legislation, and think that the greater the limits on the Justice Department the better. Yet, in this case, I think that this bit of law is probably acceptable. I, for one, would prefer to see terrorists kept in jail until trial. The problem, I guess, is that there is no guarantee with this Administration, that someone is going to get a trial. Anyway, I'd like to hear you lawyers and/or civil libertarians weigh in on why this piece of law is or is not a good thing. I know the ACLU hates it, why do you?