Our New Teachers about Rule of Law
The Gray Lady is dedicating space this week to reflections on Gitmo. In addition to a debate on it (more on that tomorrow), it offered Lakhdar Boumediene and Murat Kurnaz space to tell their stories, albeit in the opinion section.
Both men told of their terrible treatment.
But both also discussed what they learned about American rule of law by being falsely imprisoned for years.
Boumediene describing losing faith in American justice, which not even the knowledge that the case bearing his name is taught in American law schools has yet returned, given the number of men who remain unjustly imprisoned.
The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal.
About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.
I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice. [my emphasis]
Kurnaz describes watching Germans, upon his return, teaching Americans about something once renewed in Germany by the Nuremberg trials: the rule of law.
I LEFT Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.
When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”
I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country.Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law. [my emphasis]
Gitmo has come to embody many things in this country over the last decade: Bush’s incompetence and criminality, our bigotry and inhumanity, and–as most would like to treat it now–a big political tussle between Obama and Republicans.
But at every turn–from the Bush Administration grasping claiming the piece of land existed outside the rule of law, to the corrupt legal process that created memos authorizing torture there, to Jim Haynes’ insistence that “we can’t have acquittals,” to the DC Circuit’s continued efforts to make sure detainees get no meaningful review of their detention–Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.
In this country, we have mostly ignored that lesson of Gitmo (not liking what it says about us, I guess). But it’s a lesson our former captives know well.
Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.
Shedding AND shredding…..
And this quote:
is the sober answer to the inane “If you’ve got nothing to hide you have nothing to fear” mentality.
And a prisoner being innocent is of little importance to a nation acting like the Buffalo Bill character in Silence of the Lambs, “It rubs the lotion on its skin, or else it gets the hose again.”
The last decade may go down in the history books (assuming they’re still written) as America’s Great Forgetting. I wonder when, or even if we’ll ever begin the Great Remembering.
Totally OT or not – 2 more dreary articles showcasing our American Dream this evening.
From the WaPo’s Karen DeYoung and Scott Wilson:
And speaking of The Gray Lady as EW’s piece begins, a question regarding the NYT for the residents of Rancho Emptywheel:
Are folks here signing up for NYT’s digital access?
My year-long complimentary online access to the NYT expired on January 1, and I’ve been debating on whether to swallow my pride and pay them for access to their news.
And no, the internal debate is not over. *g*
Their choices are:
1) Free access limited to only 20 articles per month (Sheesh! I used to view 20 NYT articles per day).
2) Pay $195 to read any and all NYT articles online for an entire year.
I’m no fan of their pay-for-view scheme, but I must admit that regardless of any complaint that I might have about particular writers or their slant at times in the NYT, they still have the best news reporting available.
Torn, I’m torn! And perhaps suffering from NYT withdrawal symptoms since I’ve not read any online NYT articles since January 1.
What have the rest of my compatriots here been doing?
@MadDog: I’m cheap. No way I’m going to pay. I count on others finding the stories and then I go using a link or using a Google search on the title so that it doesn’t count against the monthly allocation. You can increase your odds of seeing things quickly once they go up by following the good reporters on Twitter.
That’s the understatement of the year when talking about US intelligence.
@Jim White: My cheapness is akin to your’s. I don’t know about using a Google search and then using it to read an NYT article.
As a matter of fact, I’m unsure just how the NYT tracks user viewing other than via counting articles by logged on users (I’ve been using the automatic logon to the NYT for years). I’ve pondered accessing the NYT via an online anonymous proxy server, but haven’t tried it yet.
@quanto: Heh! Or as the resident lawyer-types here are fond of saying, an admission against interest.
@MadDog: An interesting “correction” and update by the WaPo on their article:
And more OT via Fox News (Ugh!):
I guess one of the “lessons” is to not blame Commander in Chief Barack Obama for the treatment of the men and boys in Cuba (and Afghanistan, Egypt, Yemen, Somalia, etc.)
And as a further reminder of the unaccountability of our betters, Spokeswoman of Barack Obama’s State Department, Victoria Nuland told reporters at her daily briefing on Monday,
“This is part and parcel of giving these guys confidence that their era is over and it’s time for Yemen to be able to move forward towards a democratic future,” when asked about the immunity law made for the outgoing President of Yemen.
My client that is now free (after nine years of captivity) explained to me how he positioned himself -after being turned over to the Northern Alliance for a bounty -to be turned over to the US. He used the little English he knew to explain to the US soldiers that he was picked up by mistake and he would gladly go with them…he told me that he was being treated brutally by the northern alliance and that he thought the US would treat him fairly..ha…we showed him a thing or two -we kept him for nine years even though the military realized at least by 2004 that he was not an enemy combatant….and as he said “I was treated worse by the US than by the northern alliance.” When he was found not to be an enemy combatant in the famous “CSRT”s they brought in a new panel to review him again…I call it the rubber stamp panel….the first panel found him unanimously not to be an enemy combatant and the new panel found him-on the exact same evidence- to be an enemy combatant.
@hcgorman: Yup, the Military Commissions were put in place to guarantee outcomes desired by the Bush/Cheney regime captors.
And when they found out that even the military couldn’t/wouldn’t buy the BS they were slinging, a roundup of kangaroos was ordered.
Right on topic, an Op-Ed in the Los Angeles Times:
@hcgorman: By any chance are any of these detainees listed by the Foreign Policy blog your clients, or is acknowledging such verboten by the US government?
The Problem Prisoners
@MadDog: And singing US Senate harmony comes this via the Foreign Policy blog:
@MadDog: no. none of those men is my remaining client. My remaining client is on the list of those who will be detained forever without charge. The reason? Because he was staying in the same guesthouse as Abu Zubaydah….a man whom the government thought was al-qaeda no. 2 or 3 and they have since acknowledged (after 100 or so waterboarding sesssions…) that Abu Z was not connected to al-qaeda…sigh. There is no other evidence of wrong doing…or even wrong thoughts…against my client- just being in that house is enough to hold him forever.
My word to all of you- check the guest registry at every place you stay at…and hope that you recognize the names of the maybe bad guys.
@MadDog: If you sign up under different browsers, i.e., IE, Safari, Firefix, etc. you can get 20 articles each. Plus, another 20 on the smart phone, ipad, etc. I’ll be dammed if I pay those MOTU any money.
@posaune: Hmmm…perhaps not. When I use IE, I’m automatically logged into NYT whenever I go to their site. Even via NYT articles from a Google News search.
The very same thing happens when I use Google’s Chrome browser, so your suggestion isn’t working for me.
Note that I accept the NYT’s cookies under each browser which is what automates my logon to the NYT’s site.
Perhaps I’ll try your suggestion with a 3rd browser, but not logging into the NYT site. Maybe that was what you meant and I misunderstood you.
a beautifully written, powerful message about how far down the rabbit hole we have fallen – “you are guilty if i say you are guilty.”
george the III would approve; madison, jefferson, mason, et al would not.
what americans who value the harsh historical experiences and the remarkable enlightenment insights that created a new kind of state – the united states of america – with the writing of and ratification of our constitution
are seeing know
is the slow dissolution of that enlightenment idea due to the seeping, corrosive influence of
– “old world” religion, e.g., the five mitered justices of the supreme court, and the zionist-hassidic fervor wrestling for control of american domestic and foreign policy, and
– highly-moneyed corporate self-interest, focused since the 1970’s on destroying that enlightenment democracy solely for the purpose of making way for their own market-controlling strategies.
at present, religion and corporate money are triumphing over public interest in a contemporary slow-slaughter
of that gift to us of a special democracy from that enlightenment age.
if he could, in his temple by the tidal basin, jefferson would weep.
so good to see your comment.
I love the comments from the German reception committee. Sadly, it would appear that Justice Jackson’s legacy has been forgotten by far too many in DC.
I still dream of the day an opening statement like this would get used by a federal prosecutor:
Click through for the whole thing and for the internal links.
‘Who could have predicted … ?’
@hcgorman: Are you talking Ghazzawhi?
attorney general – later supreme court justice – robert jackson, a hero of mine.
a true hero
for a dark time in our nations history in which we electronically celebrate the “heroism” of tens of thousands of media-designated ersatz heoes.
attorney-general robert h. jackson speaks to assembled federal prosecutors:
” The Federal Prosecutor
On Monday morning, April 1, 1940, Attorney General Jackson gave the following speech to the United States Attorneys who then were serving in each Federal Judicial District across the country. These prosecutors were assembled in the Great Hall at the United States Department of Justice in Washington, D.C., for the Second Annual Conference of United States Attorneys.
In the speech, Jackson, who had been Attorney General for only three months, offered his views on what constituted proper, ethical conduct by federal prosecutors.
These remarks subsequently were published in 31 Journal of Criminal Law & Criminology 3-6 (1940) and 24 Journal of the American Judicature Society 18 (1940).
Article originally appeared at 24 J. Am. Jud. Soc’y 18 (1940). Reprinted by permission of the Journal of the American Judicature Society.
The Federal Prosecutor
By Robert H. Jackson
Attorney General of the United States
April 1, 1940
It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.
These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.
Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.
Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.
Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.
Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.
The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.
In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.
Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.
But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
Thank you, orion. My mother worked for Robert Jackson at Nuremburg. She took the first round of depositions. She said it was horrifying — that the sole comfort was Jackson himself, who, she said, worked “on the side of the angels.”
(1) Maybe the German delegation could have used the plastic shackles on the American officer … and “disappeared” him … in a cell blasted with “Heidi” music … until he confessed … to being an irredeemable nitwit.
(2) @MadDog: The Karen DeYoung article you cite shows how removed from reality Washington is. Even if Iranians chose to get rid of the current government, there’s zero evidence that a successor government — even one that met every criterion of the West’s definition of “democratic” — would surrender on the nuclear issue.
Perhaps this lie should be revised to: if the interrogator believes you are not hiding anything, you may have nothing to fear, otherwise, you’re pretty much going to suffer.
@MadDog: “create enough hate and discontent at the street level” that Iranians will turn against their government…”
Chilling that their goal is to create “hate and discontent.” That they behave this way only increases the hate and discontent decent folk have for their own government.
@MadDog: For my family, $195 per year is way too expensive. I’ve written to the NYT about this. Since the marginal cost of adding the next subscriber is near zero, this is also a stupid business decision. I can imagine that their additional subscribers would be in the hundreds of thousands, if not millions, if the annual rate were about $25.
Thinking maybe NYT needs to change its current motto to “All the news you can afford.”
@Greg Brown: Were these people schooled by Karl Rove?
Bob in AZ