Monday, May 25, 2009

Trial And Error

It is some consolation that others agree with me that President Obama's decision to resurrect the military commission system for detainees held at Guantanamo Bay is simply wrong. It is, however, reassuring that one of those who agree with me is a columnist for Germany's Financial Times Deutschland. The piece was written by Fidelius Schmid and is titled "George W. Obama." Unfair? I think not. Obama wants to resurrect military tribunals, as well - the same ones the Bush administration, in defiance of every established Western principle of law, had wanted to use to try suspected terrorists. This decision is not just another intelligent application of knowledge, but rather a regrettable weakness of a man who inherited a catastrophe. ...

The tribunals Bush created are simply outrageous. They limited the rights of defendants to legal counsel, permitted hearsay as evidence, and allowed confessions extracted during torture. Anyone who defends these legal institutions should not criticize Islamic Sharia courts.

Admittedly, Obama does want to improve the tribunals. Statements that had been extracted with the aid of so-called waterboardings and other brutal interrogation techniques will no longer be allowed. This surely mitigates some of the outrage, but does not get him off the hook entirely. With all due respect and understanding for the tactics essential for domestic politics, his decision on the tribunals is counterproductive and unnecessary.

...there are only two options for these prisoners. Americans could either turn them over to Afghan or Iraqi authorities, or else just keep them in custody. Their concern is legitimate. But then these prisoners would have to be entitled to all the rights the Geneva Convention outlines for the protection of prisoners of war. ...

It is complicated and going to take a long time to issue a final sentence to anyone in a proper court. Can anyone be sentenced there without first having proven his guilt beyond any doubt? Could a guilty party inadvertently escape justice? Yes, this is true. And yes, this is not practical. But these are basic principles, and this is the best the U.S. and all Western-style democracies have. These principles distinguish Western democracies from dictatorships, quasi-democracies, and theocracies.
[Emphasis added]

Preach it, my brother!

Those are exactly the points which are in play here. I don't know Mr. Schmid's age or his ideological background, but it is clear he appreciates the difficulties and the successes of the Nuremberg Trials. In those proceedings, international law was as much on trial as the defendants, and international law came through brilliantly, primarily because the nations and prosecutors involved held the concept of the rule of law, not the rule of a man or men, to be paramount. Prosecutors were prepared to fail, but they were not prepared to accord those in the dock, many of whom were characterized as monsters, anything less than full legal rights.

It is easy to accord those rights to the guy down the block busted for driving under the influence of alcohol. It is harder to accord those rights to rapists and murderers, but it is possible. Hardest is according those rights to those who admit to wanting to bring an entire nation to its knees by terrorist acts. But if we truly believe in the rule of law, all of those defendants must be entitled to it. There can be no exceptions. None. That is where the rubber meets the road in democracies such as ours.

The real danger to this country is not the so-called terrorists or the actual terrorists being "detained" at the prison camp in Cuba, it is the loss of one of the most integral threads in the fabric of our democracy: the right to a fair trial, one in which all evidence is discoverable, all witnesses available for cross-examination, all charges known. Anything less is a "show trial," the kind the Soviet Union and Latin American countries in the last century were famous for.

Today we honor those who died in war. We are told that they died so that we could be free. If that is truly the case, then we dishonor their lives and their deaths by diminishing that freedom by turning our backs on the basic principles of our Constitution. I want no part of that dishonor.

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Blogger Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) said...

I am growing more and more certain every day that Obama is a place-holder for the next generation of FlyingMonkey/Fascist/Fundies.

He's going to be blamed for failing to fix all, or most, or even some of the clusterfucks he was left by the busheviks.

Murkins, with attention spans crafted by hour-long tv dramas, will reliably be blaming him for whatever he cvannot fix by this time next year...

He'll be a lame duck in Nov, 2010.

1:21 PM  

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