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

[Ricky Baldwin]

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 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,
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
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.
 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 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
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) 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
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 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 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, 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 of that view).  She also said -- when the
host asked about the recent
example I cited
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
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 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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