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.

9/11/09 - Remembering our Collective Humanity

I don't really have much to say on this eighth anniversary of the 9/11 attacks. So much has happened since that day, that day when the whole country was glued to their televisions and computers unsure of what to make of the tragic events. When I find myself watching footage from 9/11/01, I am almost overwhelmed in thinking about all of the historical steps that the United States would take beginning on 9/12. Wars, torture, lawsuits, the Patriot Act, wiretaps...connecting how we travelled from then to now is a confusing, frustrating, and often enraging task.

People were very afraid after the attacks and who wouldn't be afraid? Normalcy was abruptly interrupted by the horrific images that the entire world got to see in real time on television. The whole world seemed to be spinning as all kinds of information flowed into our heads and as all of us tried to make sense of every last detail. Some of us turned to our peers to comfort our fears, some of us turned to our families, and some of us turned to the leaders of this country for direction and guidance. Our leaders fed on this fear. Our leaders took this fear, mixed it with rage, and began to march this country into a war that is still going on to this day. All of a sudden we were bombarded with color-coded warning systems, enemies that seemed to take on mythological characteristics, and a version of Patriotism that was more interested in gathering support for "payback" as opposed to discussing a rational way forward.

The next thing you know, we were being led into a war that was based on false claims, our phones were being tapped to "protect us", and our leaders were justifying torturing prisoners and their supposed authority to hold them without charge for an indefinite amount of time. We had spiraled out of control and were a nation that was divided. "With us or against us", black and white, good versus evil. No middle ground and no questioning. Our leaders told us that they knew best and anyone that objected to torture or to launching an unprovoked war were labeled anti-American and accused of living in a "pre-9/11" mentality.

This was quite amazing considering that the real story on 9/11/01 centered around the heroism of the ordinary. In New York City, boundaries that once separated, were broken and stereotypes seemed irrelevant to those who were caught in the chaos of the falling towers in Lower Manhattan. Heroism was not defined in a singular figure that was a Hollywood creation, heroism was defined in the collective. The coworkers who helped others to safety, passersby who lent a helping hand to those fleeing the smoke and debris, and those who ran back into the danger to bring the helpless out. Simply put, we were human that day. Our labels didn't matter, our colors didn't matter, and our beliefs didn't matter...our humanity mattered.

Rebecca Solnit has a good piece posted today at TomDispatch.com on this very point and it is worth your time to read. These moments that allowed for the magnification our collective humanity were the real stories of 9/11 and I think that point needs to be stressed and remembered. This was all but forgotten as this country raced off into the so-called "War on Terror" and began eroding the very characteristics of humanity that were magnified on 9/11.

I will close with a portion of Solnit's piece:

Every city that has had, or will have, a disaster should have such a carnival of remembrance and preparation. For one thing, it commemorates all the ways that San Franciscans were not defeated and are not helpless; for another, it reminds us that, in disaster, we are often at our best, however briefly, that in those hours and days many have their best taste of community, purposefulness, and power. (Reason enough for many of those who are supposed to be in charge to shudder.) For the fourth anniversary of Hurricane Katrina, New Orleanians were invited to ring bells, lay wreaths, pray, encircle the Superdome, that miserable shelter of last resort for those stranded in the hurricane and flood, and of course listen to music and dance in the streets to second-line parades, but also to keep volunteering and rebuilding. (Perhaps the most overlooked aspect of that disaster is the vast army of citizen-volunteers who came to the city's aid, when the government didn't, and are still doing so.)

New York has its pillars of light and readings of names for the anniversary of 9/11, but it seems to lack any invitation to the citizenry to feel its own power and prepare for the next calamity. For there will be next times for San Francisco, New York, New Orleans, and possibly -- in this era of extreme and turbulent weather, and economic upheaval -- a great many other cities and towns in this country and elsewhere.

That hydrant on a quiet residential corner of San Francisco is about the only monument to the 1906 earthquake and fire. The rebuilt city, the eventual rise of disaster preparedness, the people who go on with their everyday lives -- these are the monument San Francisco needed and every city needs to transcend its calamities. New Yorkers could gather in Union Square and elsewhere to remember what happened, really remember, remember that the heroes weren't necessarily men, or in uniform, but were almost everyone everywhere that day.

They could open their hearts and minds to discuss mourning, joy, death, violence, power, weakness, truth and lies, as they did that week. They could consider what constitutes safety and security, what else this country could be, and what its foreign and energy policies have to do with these things. They could walk the streets together to demonstrate that New York is still a great city, whose people were not frightened into going into hiding or flight from public and urban life. They could more consciously and ceremoniously do what New Yorkers, perhaps best of all Americans, do every day: coexist boldly and openly in a great mixture of colors, nationalities, classes, and opinions, daring to speak to strangers and to live in public.

The dead must be remembered, but the living are the monument, the living who coexist in peace in ordinary times and who save one another in extraordinary times. Civil society triumphed that morning in full glory. Look at it: remember that this is who we were and can be.

This piece is crossposed here.