A Two-Tiered System of Justice

The blogosphere is all fired up regarding the recent news that Khalid Sheik Mohammed and five others are going to be brought to the United States to stand trial in civilian court. Here is one example from Doug Payton over at Considerettes:

Khalid Sheikh Mohammed, self-proclaimed mastermind of the 9/11 attacks, is being promoted to, what amounts to, full citizen of the United States of America for purposes of standing trial, in civilian court, for his war crimes. He’ll get all the rights and privileges afforded citizens, and even just residents living under the laws of our land, even though he has never been either of those.

Nazis are rolling over in their graves. No doubt John Kerry, who called the war on terror a "law enforcement" issue is feeling vindicate today.

I suppose this type of reaction from the right is to be expected, even complete with hyperbole about Nazi's!

I first heard of this news on NPR in my car this morning and while my initial inclination was to applaud the Obama Administration for finally bringing charges against these individuals I then heard the other half of the announcement. Namely:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

Al-Nashiri is an accused mastermind of the deadly 2000 bombing of the USS Cole; Khadr is a Canadian charged with the 2002 murder of a U.S. military officer in Afghanistan. Khadr was 15 years old when he was captured in July 2002.

Holder said a venue for the military commissions has not been set.

Sigh. So the American system of justice is good enough for some, but we must resort to the controversial "Military Commissions" for others? That sure sounds like a two-tiered system of justice to me. Despite all the comments I have seen today saying that we should just execute KSM or that he shouldn't be afforded a trial, we should aspire to be a civilized society that has a fair justice system that can be applied to even the "worst of the worst". A fair justice system does not seem to jive with the ability of our leadership to simply pick and choose which accused terrorists get afforded a system of justice like that practiced in our civilian courts and which detainees will have to go through the more controversial Military Tribunal system that has been largely criticized.

The obvious question in this situation (as is all too often the case) is why? Why are some detainees deemed fit to stand trial in the United States under one system of justice while others will be tried under Military Commissions? Glenn Greenwald has some ideas:

So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still -- those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you'll get just enough to be convicted isn't a justice system at all. It's a rigged game of show trials.

I think these implications and observations that are made by Greenwald, are being grossly overlooked in the corporate media's discussions on this issue. Most discussions are largely focused on the impact of bringing KSM to the United States for trial and the so-called "security risks" that it could pose. The greater implication that Grennwald outlines, is why these two systems of justice are being written. A very telling portion of Attorney General Eric Holder's statement on this issue was this segment (emphasis mine):

In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.

More Greenwald:

There's supposed to be one justice system for everyone -- not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ's investigation of al-Nashiri was originally classified as a standard criminal case, but -- as his counsel pointed out today -- he was assigned to a military commission because there simply isn't sufficient evidence to convict him in a real court.

[...]

And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is "tainted," or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration's use of military commissions on the same grounds that you're defending Obama today?

This system, that of our leadership being able to decide which system of justice each detainee gets, is flawed at best and has the potential to be unjust at worst. These criticisms are why these actions were opposed so strongly when former President Bush implemented these Commissions and why they should be equally opposed as President Obama continues their use.

Obama's Order to Close Guantanamo and Reasserting Basic Judicial Principles

The reinvigorated patriotic glow of the inaugural festivities has quickly grown dim as the daunting task of reshaping America is already causing some backlash in the media and in the blogosphere. Most notably is President Obama's decision to halt prosecutions at Guantanamo Bay for 120 days and the eventual closure of the facility within one year. This action has sparked outrage that has spilled over into some conservative blog entries with opponents to Obama's order making the claim that this action has made America less safe.

There are some common themes and arguments that those who have written about this topic tend to put forth. These include, and may not be limited to:

- Those who are being detained in Guantanamo Bay are the worst of the worst and pure evil, so you cannot charge them as if they were citizens of the United States.
- Closing the base at Guantanamo Bay and trying the detainees on American soil will invite terrorist attacks on the United States.
- The trials that have been operating under the military commission system are the proper place for "enemy combatants" to be tried.

I should start off by saying that some of the detainees at Guantanamo Bay have been held for over seven years without a single charge being brought against them. At the same time the Bush Administration, and many who offer their support for this facility, continue to put forth the argument that those detained are the worst of the worst and guilty of wanting to destroy America. How do we know this? Because the former Administration has told us so! So in the framing of this discussion and to keep with one of the cornerstones of our system of justice, we must first acknowledge that those accused of crimes, even those as heinous as terrorism, are innocent until proven guilty.

This leads me into the first point that I have listed above. Those who continue to advance the argument that those captured are an exception to "normal" criminals and therefore should not be tried as such. I am not advancing the argument that all of those who are being held at Guantanamo Bay are innocent, in fact there are probably some very dangerous people who are currently being detained. In the same breath, these detainees are human beings. Human beings who have made choices, aligned themselves with various ideologies, and hold strong beliefs (right or wrong) about the way the world should operate. If the choices they have made and the actions that they have taken are illegal, then they should be charged with a crime and have the opportunity for a fair trial just like any other person accused of wrong-doing.

In addition to upholding the basic tenets of justice that the United States was founded upon, the Supreme Court issued a ruling in June, 2008 in which the writ of habeus corpus was restored and it was ruled that detainees had a right to challenge their detention in U.S. courts. So contrary to some arguments, yes, detainees do have the right to challenge their detention in U.S. courts.

Another popular argument of late is that trying the detainees from Guantanamo, on U.S. soil, will make the United States less safe and invite terrorist attacks on the country. This argument has been put forth by members of Congress, columnists, and bloggers alike. Some columnists, like David Stokes, have even suggested that detainees have been treated so well at Guantanamo Bay, that they would be more likely to be abused in the U.S. prison system. From his most recent piece:

People who have spent time at GITMO tell me that prisoners have been treated better there than they are at prisons in America. In fact, it is commonplace for American personnel to be the recipients of abuse meted out by the Guantánamo detainees.

Surely claiming that American captors are the "recipients of abuse" at the hands of the captive is an interesting argument, but it is Glenn Greenwald who does a very good job pointing out in a recent piece that the United States has tried, convicted, and imprisoned terrorists for years without incident. Greenwald sums it up nicely:

If it were really the goal of Terrorists to attack American prisons where their members are incarcerated and if they were actually capable of doing that, they already have a long list of "targets" and have had such a list for two decades. If U.S. civilian courts were inadequate forums for obtaining convictions of Terrorism suspects, then the above-listed individuals would not be imprisoned -- most of them for life -- while the Guantanamo military commission system still has nothing to show for it other than a series of humiliating setbacks for the Government.

Still after these "humiliating setbacks" with the military commission system, as Greenwald calls them, there are many who continue to argue that this is the system in which the detainees should be tried. As I continue to hear this argument, I am reminded of Lt. Col. Darrell Vandeveld, a former prosecutor at Guantanamo Bay that resigned in mid-September due to his objections to the military commission system. In a piece from October at Salon.com, Vandeveld says that he was "truly deceived" by the commission system. From the piece:

His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.

In addition to the resignation of prosecutors from Guantanamo Bay over the military commission system, the very idea that evidence obtained using coerced interrogation is able to be used against those charged underlines what a mockery of justice these commissions are. Suppression of evidence from the defense of those accused of serious crimes combined with the ability to admit evidence obtained through coercive interrogation are two very positive reasons why these trials have been halted and why this system has been placed under review by the Obama Administration.

Standing up for the rule of law and a system of justice that this country has prided itself in since its founding is not "coming to the defense of terrorists" or "wanting to put Americans at greater risk", as some have claimed of those who praise Obama's decision. We are talking about adhering to the basic principles of justice that have set this country apart from dictators in the past. Indefinite detention without charge and the implementation of torture by the leaders of a government is the mark of dictatorships and not a society that prides itself on justice through the rule of law. A return to these fundamental beliefs and practices is necessary for the United States to reassert itself as a country that not only treats its captives with respect, but has a strong judicial process which offers the accused their basic rights.

Accountability to the Rule of Law is not a Criminalization of Political Differences

Posted at the "Arena" section of Politico.com, is a question that relates to what I, and many, have been writing about recently. For those who are not familiar with this section of Politico's website, it is a section that is described as their "daily debate with policy makers and opinion shapers." The question posted states: "Should the DOJ consider prosecuting Bush administration officials for detainee abuse as the NYT and others have urged?"

There are some short responses by a wide-range of individuals and some of the responses continue to miss the mark on this issue. The first response is from Steven Calabresi, a Professor of Law at Northwestern University, and he acknowledges that if war crimes were committed, (and he doesn't believe that any were) then we should prosecute those responsible. He then goes on to qualify his response by taking a shot at both the New York Times and those who hold a different political ideology than the Bush Administration:

"The effort by the New York Times and others to criminalize politics by
casually urging the criminal prosecution of Bush Administration officials the
Times disagreed with is however reprehensible. It is a step back toward the era
when we guillotined our political opponents instead of voting them out of
office."

This is much more than, as Calabresi suggests, a criminalization of politics. As has been discussed in my previous entries, we are talking about decisions that have directly led to the torture, and in some cases, the deaths of detainees in U.S. custody. This is about an Administration who has violated the Geneva Conventions, shut out legal opinion that did not coincide with the tactics they wanted to implement, and lied after the story broke about these torture programs. We are not talking about the criminalization of politics, we are talking about a fundamental disregard and disrespect for the rule of law.

There are more responses to this question from Steve Steckler of the Infrastructure Management Group and from Maurice Carroll, Director of the Quinnipiac University Polling Institute. Steckler states:

"Such prosecutions, warranted or not (and on balance, I don't believe they are),
would distract and diminish the new Administration in a manner similar to what
would have occurred had the same Bushhaters been successful in getting the
Democratic Congress to begin impeachment proceedings."

Again, labeling those who are concerned with crimes committed by the current Administration as "Bushhaters" frames this issue within a political context that implies that those who are calling for an investigation into crimes committed, are merely political opponents of the President. It matters not if those calling for an investigation or prosecution of the officials who have committed crimes are political opponents, what matters is that there are serious laws that have been broken. My favorite response to this question however, comes from Maurice Carroll. Here is his response in full:

"Is it a good idea for a new administration to look for prosecutable
crimes by the old administration? Even if their opinion is that there WERE
crimes? By and large, the answer is no. Even if the true believers (and the
true-believer editorial writers) are pestering the Obama administration to do
it. One of the strengths of the American political system is that it's not a
blood sport. We disagree without looking to put the other guys in jail. Which is
a longish way of saying: There'll be a new slate. Shouldn't we wipe the old
slate clean?"

This argument has been echoed lately in discussions surrounding the Bush Administration and has been voiced by many. The problem with this is line of thought is that it provides for zero accountability even if very real crimes have been committed. Carroll states that it isn't a good idea for a new administration to look into prosecutable crimes, EVEN IF they believe that real crimes were committed. Instead, Carroll favors "wiping the old slate clean" by excusing any crimes and moving on with a "new slate".

Political accountability is one thing. If elected officials do not represent their constitutes and fail to bring the people what was promised then voting these officials out of office is a type of political accountability, but we are not simply talking about political accountability in this instance. We are talking about actual crimes that have taken place and holding criminals accountable by the legal standards that every day citizens are held to. We should not confuse accountability to the rule of law, with political accountability.

It makes little sense to operate as a nation of laws and on the notion that no one is above the law, if the country's response to law breaking by elected officials is to ignore it to preserve so-called "political unity". Mr. Carroll states that this is one of the great strengths of the American political system yet in fact, it is one of the biggest weaknesses of the American political system. This is a system where we see soldiers, who implemented policies of torture punished by a justice system that ignores those who put the policy in place. This is not justice, nor is it simply a difference in political belief systems. What this system is, is a group of elite politicians who feel they are above the law and can act without being held to account for even the most serious crimes that we have seen in recent times. Should the DOJ consider prosecuting Bush Administration officials for detainee abuse? Most certainly. It is necessary in order to hold lawbreakers to account for their crimes and recommit this country to the basic principles of the rule of law.