[Peace-discuss] Re: the rule of law is dead

Thu Jul 9 10:43:40 CDT 2009

Did the rule of law ever actually exist or was it a delusion that was reinforced by mass hallucinations which we were taught in school to believe in and espouse?   Have we not be an emulation of Voltaire’s Candid- optimistically believing that we live in the best of all possible world governed by the rule of law and not man.

> So this is (another) one of those cases where Obama is embracing a radical Bush theory of power rather than inventing one of his own.

Did Obama ever really have a “theory of power” or even policies of HIS OWN as opposed to adopting or stealing others theories and policies which he then repackaged in the wrapping of his rhetoric and oratorical skills for resale to everyone? From the outset, Obama has only been true to one philosophy, one theory of power, and one policy – that of political opportunism, of sleight of hand, and of duplicitous hypocrisy.  Of course, most practical politicians operate in the same way under the same premises where winning and staying in power are the goal and priority with law, morality, ethics, fairness and equality being secondary and defined by what it takes to win and stay in power.

Maybe, it is time we recognize that all that has happened over the past 75 years is that we have shed the course cloak of fictitious  literary idealism and ideological symbolism, replacing it with a more technological and sophisticated one, so as to reveal that we have become  the very imperialistic and arrogant fascism that that we have always been since the start. Today’s U.S. has become a giant retailer promoting and selling all kinds of low quality, cheap, worthless, and useless goods and services at a profit to the established aristocratic owners, who hide behind the corporate structure of government and the façade of the alleged ultimate ownership by citizen shareholders operating under the guise of democratic rule by law.

If we get any form of health care reform, it will be because the establishment corporate elite want it and will take the form that they will accept – general public be damned.  If we get any relief from engagements in war making or the support of such activities, it will be because this same elite see it in their interests and not because of anything that the general public does or says.  If we get economic stability and reform, it will be because this elite find it desirable and profitable to obtain it – and not because  it helps the general public or is good for the country.  But we all know and acknowledge these facts, then we turn a blind eye and start spewing out all the old symbolic clichés about democracy, civil rights, opportunities of the ordinary citizen, freedom, equality, public welfare, national security, free enterprise, progress, etc.

From: peace-discuss-bounces at lists.chambana.net [mailto:peace-discuss-bounces at lists.chambana.net] On Behalf Of Ricky Baldwin
Sent: Thursday, July 09, 2009 9:04 AM
To: astridjb at comcast.net
Cc: peace discuss
Subject: [Peace-discuss] Re: the rule of law is dead

The stuff of nightmares.

Ricky

"Speak your mind even if your voice shakes." - Maggie Kuhn

--- On Wed, 7/8/09, Astrid Berkson <astridjb at comcast.net> wrote:

From: Astrid Berkson <astridjb at comcast.net>
Subject: the rule of law is dead
To: "lp53forum at lpths.org" <lp53forum at lpths.org>
Date: Wednesday, July 8, 2009, 8:39 PM

Glenn <http://www.salon.com/opinion/greenwald/>  Greenwald

Wednesday July 8, 2009 08:09 EDT

The Obama justice system

Spencer Ackerman yesterday attended a Senate hearing at which the DOD's General Counsel, Jeh Johnson, testified.  As Ackerman highlighted <http://washingtonindependent.com/49886/johnson-opens-the-door-to-post-acquittal-detentions> , Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial.  About this assertion of "presidential post-acquittal detention power" -- an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties -- Ackerman wrote, with some understatement, that it "moved the Obama administration into new territory from a civil liberties perspective."  Law professor Jonathan <http://jonathanturley.org/2009/07/08/12598/#more-12598>  Turley was more blunt:  "The Obama Administration continues its retention and expansion of abusive Bush policies — now clearly Obama policies on indefinite detention." 

In June, Robert Gibbs was repeatedly asked by ABC News' Jake Tapper whether accused Terrorists who were given a trial and were acquitted would be released as a result of the acquittal, but Gibbs -- amazingly -- refused to make that commitment <http://blogs.abcnews.com/politicalpunch/2009/06/white-house-refusal-to-answer-question-on-terrorist-prompts-senate-skirmish.html> .  But this is the first time an Obama official has affirmatively stated that they have the "post-acquittal detention" power (and, to my knowledge, the Bush administration never claimed the power to detain someone even if they were acquitted).

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal:   to ensure that anyone the President wants to keep imprisoned will remain in prison.  They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates.   This is how I described it <http://www.salon.com/opinion/greenwald/2009/05/22/preventive_detention/>  when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy:  if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree.  That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

In today's  <http://online.wsj.com/article/SB124699680303307309.html> Wall St. Journal, which also reported that "the Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges," Rep. Jerry Nadler was quoted as saying something quite similar about the Obama approach:

"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial," Mr. Nadler said.

Exactly.  Show trials are exactly what the Obama administration is planning.  In its own twisted way, the Bush approach was actually more honest and transparent:  they made no secret of their belief that the President could imprison anyone he wanted without any process at all.  That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.   And for those who -- to justify what Obama is doing -- make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) <http://politics.theatlantic.com/2009/07/i_want_to_draw_attention.php>  detainees as well?

Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee.  That's one of those propositions that ought to be too self-evident to need stating.

* * * * *

Several related points:  Spencer also notes <http://washingtonindependent.com/49958/guantanamo-open-after-january-2010>  that Johnson testified yesterday about the possibility that Guantanamo might remain open beyond January, 2010 -- the date Obama, to much fanfare, established as the deadline for closing that prison.  That decision is one of the very few to which Obama defenders can cling in order to claim there are significant differences between his approach to these issues and the Bush/Cheney approach. 

Meanwhile, former Guantanamo detainee Binyam Mohamed is engaged in what  <http://www.guardian.co.uk/world/2009/jul/05/binyam-mohamed-guantanamo-evidence-photographs> The Guardian calls "an urgent legal attempt to prevent the US courts from destroying crucial evidence that he says proves he was abused while being held at the detention camp detainee."  The photographs -- which show Mohamed after he had been severely beaten and which he claims was posted on the door to his cage "because he had been beaten so badly that it was difficult for the guards to identify him" -- is scheduled to be destroyed by the U.S. Government, an act The Washington Independent's Alexandra <http://washingtonindependent.com/49932/alleged-torture-photos-slated-for-destruction>  Jaffe calls "another black mark on the Obama administration’s promised transparency."

Finally, I was on an NPR station yesterday in Seattle to discuss NPR's ban on the use of the word "torture" to describe Bush administration interrogation tactics.  I originally understood that I would be on with NPR Ombudsman Alicia Shepard, but alas, it turns out that she agreed only to be on the show before me, so as not to engage or otherwise interact with me, so I was forced to listen to her for 15 minutes and wait until she hung up before being able to speak.  The segment can be heard here <http://www.kuow.org/program.php?id=17910> , beginning at the 14:00 mark (though the quality of the recording is poor in places).   

The most noteworthy point was her explicit statement (at 17:50) that "the role of a news organization is to lay out the debate"; rarely is the stenographic model of "journalism" -- "we just repeat what each side says and leave it at that" -- so expressly advocated (and see Jon Stewart's perfect mockery <http://mglo.posterous.com/re-balance-in-the-press-glenn-greenwald-salon>  of that view).  She also said -- when the host asked about the recent example I cited <http://www.npr.org/templates/story/story.php?storyId=106233270>  of NPR's calling what was done to a reporter in Gambia "torture" (at the 20:20 mark) -- that NPR will use the word "torture" to describe what other governments do because they do it merely to sadistically inflict pain on people while the U.S. did it for a noble reason:  to obtain information about Terrorist attacks.  That's really what she said:  that when the U.S. did it (as opposed to Evil countries), it was for a good reason.  Leaving aside the factual <http://www.mcclatchydc.com/227/story/66622.html>  falsity of her claim about American motives, Shepard actually thinks that "torture" is determined by the motive with which the suffering is inflicted.  The connection between the Government's ability to get away with these things and the media's warped view of its role really cannot be overstated.

 UPDATE: The ACLU's Ben Wizner emails to correct one point I made:   the Bush administration, like Obama is doing now, did claim the power of post-acquittal detentions.  Ben writes:

Glenn – You’re right that this is disgraceful, but not that it’s new. The Bush gang claimed the same authority in connection with Gitmo military commissions, which is why, paradoxically, the only way to get out of Gitmo if you were charged in a military commission was to plead guilty and strike a deal that included repatriation (as David Hicks did).

This is from an  <http://articles.latimes.com/2007/apr/05/opinion/oe-wizner5> LA Times op-ed I wrote in 4/07:

Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months -- a sentence more in keeping with a misdemeanor than with a grave terrorist offense.

This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released.  In Guantanamo, the accused must plead guilty to be released -- because even if he is acquitted, he remains an "enemy combatant" subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.

So this is (another) one of those cases where Obama is embracing a radical Bush theory of power rather than inventing one of his own.

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