Fear of Justice and Freedom

With each new step the Bush Administration takes, we are further removed from the fundamental principles of jurisprudence and civil rights that have defined the American system of justice. What is it that we fear so much? Certainly, the public is rapt in the thrall of a constant and pervasive drone of fear mongering. The majority of Americans surveyed now believe that “terrorism” is one of the most important issues that we face today. The facts do not support the hype, except that global terrorist attacks have risen markedly after the commencement of the disastrous invasion of Iraq by the Bush Administration. The American people are less safe from terrorist attacks after the President’s declaration of war on terrorism than they were before it was announced. However, terrorist attacks within the United States and against US citizens have not changed significantly in character over the past decade, and (with the exception of the 9/11 attack on the World Trade Center) are not typically characterized by plots or actions by Arabs and Muslim extremists. However, the nature of the threat is distinct from the question of principles that define our response to the alleged perpetrators. It is said that the true test of character is not what bad things happen, but rather how one responds to and deals with such adversity.

The character of a nation is defined by its institutions and system of justice established to protect a way of life. These principles and systems represent the embodiment of the collective moral fabric of the society. Let us take an easy example. In war, there is no question that our troops will be faced with mortal danger and encounter enemy combatants. When confronted with the capture of an enemy soldier, our military personnel have choices in responding. The rules of engagement, the principles of international law and the Code of Military Justice impose moral imperatives that prohibit cruel and inhuman treatment of prisoners. Torture is illegal, not just because of the pain it would inflict upon prisoners but also because of how it would define our military and our society. The strength of a system of justice lies not in the severity of punishments that it can impose as consequences for conduct violating accepted boundaries of social behavior. True strength lies in the collective faith by the society that the consequences will be meted out to those proven to warrant such sanctions and that the punishment will fairly fit the crime involved.

In America, we have refined and developed a set of fundamental principles designed to assure that those who are punished are guilty of crimes beyond a reasonable doubt. This requires, under our system of justice, that the accused be accorded certain basic procedural rights. These procedures are logical and not onerous for the government. Prisoners are entitled to be advised of the charges and evidence asserted against them, the right to challenge those accusations in an impartial forum and the right to counsel to assist in their defense when their liberty is threatened. Some in American society decry the fact that this system is imperfect and may on occasion allow the guilty to escape punishment. There is, indeed, no question that the implementation of the system has seen many flaws and miscarriages of justice. However, the great majority adhere to the belief that a fair and balanced system should risk the guilty going free in order to reasonably assure that the innocent are not unlawfully deprived of their liberty. That belief is embedded in our Constitution. Most of the miscarriages of justice have come from a failure to uphold the principles of justice rather than because of the principles themselves.

The Bush Administration system of justice being adopted in response to the so-called “War on Terror,” is eroding and in some instances brutal dismantling the traditional system of American Justice we have painfully and proudly developed over centuries. Worse, the citizens of this nation seem to have acquiesced in tearing down our valued principles.

The fundamental right of habeas corpus, the right to demand that officials present a reasonable justification for holding the accused captive, is rooted in the Magna Carta and was a principal motivation for rebellion against arbitrary imprisonments by King George IV of England. Yet by simply labeling a person a potential “enemy combatant,” George W. Bush has stripped these human beings of that fundamental right. So called “enemy combatants” have been held for years without even the ability to challenge whether there are any reasonable grounds for detaining them. Many are in fact known to have no association whatsoever to combat, insurgent or terrorist organizations, yet are denied the opportunity to contest the reason for their imprisonment. What is to be feared from requiring the government to establish probable cause to hold someone in jail for years at a time? Is the fact that these individuals are Arab or Muslim or that they might be “bad” people now the functional standard of American jurisprudence for imprisonment without charge or conviction?

Most recently, the Bush Administration wants to require that all communications between the detainees and their lawyers be monitored by the government officials that are holding them in prison and prosecuting the detainees. In addition, they wish to impose a limit that the attorney can visit with a detainee client only three times. The government argues that communication with attorneys is causing unrest among the inmates. They also contend that the attorneys may be passing information about terrorism events that may facilitate further acts of terror. These arguments are beyond weak. First, it is not unreasonable to expect that inmates being advised by counsel of their legal rights and the actions by the US government to restrict such rights might be upset and frustrated. Second, the attorneys are officers of the court and can be seriously disciplined if any actual evidence of complicity in terrorist activities can be shown. The arguments put forward by officials do not begin to support the gross deprivation of fundamental access to counsel that lies at the foundation of the American system of jurisprudence.

The United States has faced threats to our public welfare in the past without the need to tear down our system of justice. The so-called “war on drugs” has been waged for years, and yet those accused of drug trafficking are not stripped of their Constitutional rights when prosecuted for crimes. During the Prohibition Era, when bootlegging and gun running were common activities of organized crime, the government did not suspend the Constitution in order to combat those crime waves. Charles Manson, Timothy McVeigh, Ted Kaczynski and other “Public Enemies” responsible for horrible mass murders were all dealt with in the context of our traditional justice system. Many would argue that the steadfast reliance and trust in the inherent durability and fairness of our system of justice through these trying times made our nation stronger.

Why then is it so necessary to dismantle that justice system, suspend Constitutional protections and ignore fundamental principles of fairness in order to deal with the current alleged crisis? If the Government has evidence of probable cause to show that GITMO detainees are involved in criminal activity, why are they afraid to put it forward? Few citizens would criticize the Government for detaining individuals where such proof exists. Why is the Bush Administration so averse to complying with the minimal restrictions provided by Congress before engaging in domestic spying and wiretapping of communication by US citizens? The negative implication is that the Government lacks even the minimal justification for holding certain prisoners or for conducting secret surveillance. And this reasonable suspicion is a cancer upon the American Justice System.

Without some adherence to a fundamental system of justice and moral standards, the US imprisonment of detainees in GITMO and the various “secret prisons” around the world is difficult to distinguish from Soviet Gulags and the Nazi concentration camps. The same is true of pervasive domestic spying as was done by the KGB and the Nazis. The extent to which such repulsive analogies are close to the Bush Administration practices is what the American people ought to truly fear. Is it necessary to destroy the principles upon which this country was built in order to protect it? History has proven that the true answer is NO. But President Bush was never a good student, least of all a student of History, I’m afraid.