American Justice: Any Hope? 15 comments

24 Nov 2008 @ 10:57, by Richard Carlson We all travel the Milky Way together, trees and men...trees are travelers, in the ordinary sense. They make journeys, not very extensive ones, it is true; but our own little comings and goings are only little more than tree-wavings---many of them not so much. ---John Muir Sit just to sit. And why not sit? You have to sit sometime, and so you may as well REALLY sit, and be altogether here. Otherwise the mind wanders away from the matter at hand, and away from the present. Even to think through the implications of the present is to avoid the present moment completely. ---Alan Watts The universe came into being with us together; with us, all things are one. ---Chuang-Tzu The illustration is a movie poster for a film that is making its impact felt increasingly through word-of-mouth. Since it may be a bit hard to find here's a synopsis: In a world of six billion people, it only takes one to change your life. Sixty-two-year-old Walter Vale is sleepwalking through his life. Having lost his passion for teaching and writing, he fills the void by unsuccessfully trying to learn to play classical piano. When his college sends him to Manhattan to attend a conference, Walter is surprised to find a young couple has taken up residence in his apartment. Victims of a real estate scam, Tarek, a Syrian man, and Zainab, his Senegalese girlfriend, have nowhere else to go. In the first of a series of tests of the heart, Walter reluctantly allows the couple to stay with him. Touched by his kindness, Tarek, a talented musician, insists on teaching the aging academic to play the African drum. The instrument’s exuberant rhythms revitalize Walter’s faltering spirit and open his eyes to a vibrant world of local jazz clubs and Central Park drum circles. As the friendship between the two men deepens, the differences in culture, age and temperament fall away. After being stopped by police in the subway, Tarek is arrested as an undocumented citizen and held for deportation. As his situation turns desperate, Walter finds himself compelled to help his new friend with a passion he thought he had long ago lost. When Tarek’s beautiful mother Mouna arrives unexpectedly in search of her son, the professor’s personal commitment develops into an unlikely romance. And it’s through these new found connections with these virtual strangers that Walter is awakened to a new world and a new life. [link] As so often happens, particularly on Mondays when I review the weekend papers, most of the computer work I'd planned to do this morning got scrapped by a single item. Then one sidetrack led to another, and soon I was wandering in the woods again. The piece that did it was in The Times of London yesterday, and some editor there I guess had seen it in its complete version in the current edition of Spear’s Wealth Management Survey magazine. It was written by the former "proprietor" of the London Daily Telegraph, who currently resides in a federal prison here in the United States. He's been there for 8 months. I know nothing of the case nor how long his sentence is. Whatever it is, he's appealing it and apparently has had some success. What he has to say that interests me is about the present legal system here. Of course laws can be changed. Even the Constitution can be changed. But through all that shines a spirit of America that all of us used to be raised to believe in. It has to do with equality before the law. If there are mistakes, OK, we understand that. But if there are injustices, Americans feel their freedom threatened. We respond. Or should. If we don't, or lose track of how we can respond, we begin to sink into the kind of daily despair that has plagued humanity around the world and through time, since our conception. Let me not preach about the last 8 years---or 16, or 32. Let us simply look at where we are, and the work to do. I know attorneys, and my family boasted some prominent ones. I set about at university to become one---until Dylan Thomas crossed my path. My daughter has such plans in the environmental field. I'm supporting her in this---despite all indications of the futility of working for the EPA. Futility. Ah, there's the rub. When a people allow themselves to believe it is futile to go up against the system---either because that system is invariably right in what it pursues, or because it is hopelessly decadent, we surrender to a prison state. If I am barred from dissent by a privately contracted army, as I have been in an attempt merely to glimpse President Bush in person, I am in a prison state. Ah, but now I'm preaching. [There are ministers on the other side of the family. :-)] Let me step aside for this gentleman in his jail cell. Then follows an editorial from yesterday's New York Times about Guantanamo. From The Sunday Times November 23, 2008 From my cell I scent the reeking soul of US justice Conrad Black I write to you from a US federal prison. It is far from a country club or even a regimental health spa. I work quite hard but fulfillingly, teaching English and the history of the United States to some of my co-residents. There is practically unlimited access to e-mails and the media and plenty of time for visitors. Many of the other co-residents are quite interesting and affable, often in a Damon Runyon way, and the regime is not uncivilised. In eight months here there has not been the slightest unpleasantness with anyone. It is a little like going back to boarding school, which I somewhat enjoyed nearly 50 years ago (before being expelled for insubordination) and is a sharp change of pace after 16 years as chairman of The Daily Telegraph. I can report that a change is not always as good as a rest. However, apart from missing the constant companionship of my magnificent wife Barbara, who visits me once, twice or even three times each week and lives nearby in our Florida home with her splendid Hungarian dogs, I enjoy some aspects of my status as a victim of the American prosecutocracy. My appeal continues. Given the putrefaction of the US justice system, it is an unsought but distinct honour to fight this out and already to have won 85% of the case and 99% of the financial case. The initial allegation against me of a “$500m corporate kleptocracy” has shrunk to a false finding against me - that even some of the jurors have already fled from in post-trial comments – of the underdocumented receipt of $2.9m. There is no evidence to support this charge. It has been a grim pleasure to expose the hypocrisy of the corporate governance establishment, who have bankrupted our Canadian company and reduced the share price of the American one from $21, when I left, to a miraculous two cents (yes, two cents). They have vaporised $2 billion of public shareholder value; fine titles in several countries have deteriorated; and for their infamies, the protectors of the public interest have cheerfully trousered more than $200m. US federal prosecutors, almost all of whom would be disbarred for their antics if they were in Britain or Canada, win more than 90% of their cases thanks to the withering of the constitutional guarantees of due process – that is, the grand jury as an assurance against capricious prosecution, no seizure of property without just compensation, access to counsel, an impartial jury, speedy justice and reasonable bail. We did not know the grand jury was sitting, have never seen the transcript of its proceedings and I was denied counsel of choice by the ex parte seizure, which the jury later judged to be improper, of the proceeds of the sale of an apartment in New York that I was going to use as the retainer for trial counsel. The system is based on the plea bargain: the barefaced exchange of incriminating testimony for immunity or a reduced sentence. It is intimidation and suborned or extorted perjury, an outright rape of any plausible definition of justice. The US is now a carceral state that imprisons eight to 12 times more people (2.5m) per capita than the UK, Canada, Australia, France, Germany or Japan. US justice has become a command economy based on the avarice of private prison companies, a gigantic prison service industry and politically influential correctional officers’ unions that agitate for an unlimited increase in the number of prosecutions and the length of sentences. The entire “war on drugs”, by contrast, is a classic illustration of supply-side economics: a trillion taxpayers’ dollars squandered and 1m small fry imprisoned at a cost of $50 billion a year; as supply of and demand for illegal drugs have increased, prices have fallen and product quality has improved. I wish to advise Lord Hurd that when I return to the UK I would like to take up more energetically than I did initially his request for assistance in his custodial system reform activities. Obviously, the bloom is off my long-notorious affection for America. But I note from recent comment in Britain and Europe that the habit of blaming anything that goes awry in the world on the US is alive and well. However, the United States has not disintegrated and American capitalism is not dead, nor even in failing health. The recent financial upheavals have exposed the folly of the US Congress and Federal Reserve and will aggravate a cyclical recession and take some time to shake out. The United States has just retained the riveted interest of the whole world, most of which does not wish it well, in the billion-dollar vulgarity of its election process for an entire year. And it surely has earned the respect of the world in elevating a very capable leader as the first non-white man to head any western nation. I would be distinctly consolable if the United States really was in decline and I have more legitimate grievances against that country than do The Guardian or the BBC, but it is still a country of incomparable vitality even as its moral, judicial soul atrophies and reeks. This is an edited version of an article by the former Daily Telegraph proprietor that appears in the current edition of Spear’s Wealth Management Survey magazine Copyright 2008 Times Newspapers Ltd. [link] The comments so far are marvelous. -------------------------------------------------------------------------------- [link] Artwork: www.takepart.com The New York Times November 23, 2008 Editorial The Price of Our Good Name Americans have watched in horror as President Bush has trampled on the Bill of Rights and the balance of power. The list of abuses that President-elect Barack Obama must address is long: once again require the government to get warrants to eavesdrop on Americans; undo scores of executive orders and bill-signing statements that have undermined the powers of Congress; strip out the unnecessary invasions of privacy embedded in the Patriot Act; block new F.B.I. investigative guidelines straight out of J. Edgar Hoover’s playbook. Those are not the only disasters Mr. Obama will inherit. He will have to rescue a drowning economy, restore regulatory sanity to the financial markets and extricate the country from an unnecessary war in Iraq so it can focus on a necessary war in Afghanistan. Even with all those demands, there is one thing Mr. Obama must do quickly to begin to repair this nation’s image and restore its self-respect: announce a plan for closing Mr. Bush’s outlaw prison at Guantánamo Bay. The prison is the premier example of the disdain shown by Mr. Bush and Vice President Dick Cheney for the Constitution, federal law and international treaties. Most sensible governments cannot see past Guantánamo to even recall America’s long history as a defender of human rights and democratic values. We are under no illusions. Closing the prison will not be easy, or quick, but it can be done. It does not mean that the United States will set free heinous terrorists. But it may mean that these prisoners will have to be tried on other very serious charges than the ones supposedly for which they were sent to Guantánamo. That is Mr. Bush’s fault. His decision to authorize the torture of detainees has made it highly unlikely that the evidence collected at Gitmo and the C.I.A.’s illegal prisons around the world would stand up in a real court. In closing down Guantánamo, there are some basic requirements: The prisoners must be dealt with as openly as possible. Those who are charged here must stand trial in federal courts, not the tribunals created by the disastrous Military Commissions Act of 2006. It would compound the disaster if, as some suggest, Congress tried to create a new system combining military and civilian justice. We have seen what happens when the government creates special systems to deal with special classes of prisoners. Human Rights Watch has offered a good template for closing Guantánamo. It includes: SET A DATE TO CLOSE THE PRISON That announcement would send a powerful signal that the new administration has rejected Mr. Bush’s abusive and unlawful policies. It would make other countries more likely to cooperate. The taint of Guantánamo is so great that right now even close allies will not consider resettling prisoners who should be set free because they committed no crimes of any kind. There may be at least 60 of these detainees at Gitmo. Selected countries might also be willing to take back their own nationals to stand trial. BEGIN A TRANSPARENT REVIEW OF DETAINEES There are about 250 detainees at Guantánamo Bay. Human Rights Watch sensibly proposes creating a task force run by the Justice Department with input from the Departments of State and Defense and the director of national intelligence to separate out those who may be truly guilty of terrorist acts — a minority — from the larger population who either committed much more minor crimes or no crimes at all. REPATRIATE DETAINEES WHO ARE NOT TO BE TRIED This must be done carefully. There are believed to be 30 to 50 detainees from places like Algeria and Libya who have justified fears of being abused or tortured if they are sent home. The Obama administration should provide these prisoners with advance notice of plans to repatriate them and give them a chance to contest those plans. Prisoners with a credible fear of abuse cannot be sent to that fate. They will have to be sent to other countries to live. The best way for the United States to get other governments to cooperate is to accept some detainees for settlement in this country. TRY THE REST IN FEDERAL COURTS Americans will hear from former members of the Bush administration and supporters of its system of injustice that the federal courts cannot handle these cases because they involve sensitive secrets, or that terrorism is not appropriately handled as a law-enforcement issue. Since Sept. 11, 2001, the federal courts have successfully prosecuted about 100 terrorism cases, and the courts deal routinely with national secrets. The real reason Mr. Bush and his team avoided the federal courts for the Gitmo detainees was that the evidence in so many of these cases is wafer-thin or unusable because it was obtained through coercion and torture. The world saw more proof of that last week, when Col. Stephen Henley, a military judge at Guantánamo, refused to admit evidence obtained through torture or coercion at the trial of Mohammed Jawad, an Afghan national who is one of the few prisoners at Guantánamo who has been charged and put on trial. Evidence that cannot pass muster in Guantánamo’s kangaroo courts is certainly not going to be admitted by a civilian judge in a duly constituted court of law. The Jawad case has become emblematic of everything that is wrong with Guantánamo Bay: he was captured in Afghanistan at the age of 16 or 17 and thrown into indefinite detention without hope of eventual release because he allegedly threw a grenade at two American servicemen and an Afghan interpreter. The prosecutor resigned in September, saying he could not ethically proceed, and the judge threw out Mr. Jawad’s confession because it had been tortured out of him by Afghan interrogators. Does this mean that truly dangerous men will be set free, to go back to plotting more attacks against America? No. But it will require smart legal thinking by the new administration. Take the case of Khalid Sheikh Mohammed. It is obvious that the confession he made to plotting the 9/11 bombings will not hold up in court. It was obtained through torture. But this prisoner is a suspect in numerous other terrorist attacks, including the murder of the journalist Daniel Pearl and the attack on the U.S.S. Cole. There is an existing 1996 indictment against him for a plot to blow up 12 United States-bound commercial airliners. The evidence in that case was obtained, we presume, legally. It may be that compromises of this kind will have to be made in other cases as well. It is understandable that some Americans will find that less than satisfying. But it is important to remember that this is the price of Mr. Bush’s incompetent and lawless conduct of the war against terrorism. It is a price worth paying to restore the rule of law and this country’s good name. Copyright 2008 The New York Times Company [link]

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