Despotism Under the Law
The Bush military tribunals provided the following protections for war crime defendents, including:
— the presumption of innocence
— the imposition of the burden of proof on the prosecution
— the right to counsel, both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one
— the right to be presented with the charges in advance of trial
— access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution
— access to interpreters as necessary to assist in understanding the proceedings
— the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes)
— the free choice to testify or decline to do so
— the right against any negative inference from a refusal to testify
— access to reasonably available evidence and witnesses
— access to investigative resources as "necessary for a full and fair trial"; — the right to present evidence and to cross-examine witnesses.
At least that is what Andrew McCarthy says in a recent article.
Those may indeed be stated protections, but the reality appears to be closer to the Soviet model, where law is sucked of the substance of justice. During the Stalanist purges in the 1930s, identifying and eventually liquidating enemies of the state followed a meticulous legal path that began with signed search warrants and ended with signed death warrants. The death of each enemy of the state was accompanied by a thick folder of forms, documents, and confessions.
I've been trying to understand why some conservatives still continue to support the amorality of rendition, torture, or incarceration without trial. It may come from a residual loyalty to our last president and a concern that dispensing with such approaches will invite terrorism. Perhaps there is something to be said for that, but that doesn't justify brushing away 700 years of jurisprudence that has developed to promote justice and to prevent despotism under the law.
— the presumption of innocence
— the imposition of the burden of proof on the prosecution
— the right to counsel, both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one
— the right to be presented with the charges in advance of trial
— access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution
— access to interpreters as necessary to assist in understanding the proceedings
— the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes)
— the free choice to testify or decline to do so
— the right against any negative inference from a refusal to testify
— access to reasonably available evidence and witnesses
— access to investigative resources as "necessary for a full and fair trial"; — the right to present evidence and to cross-examine witnesses.
At least that is what Andrew McCarthy says in a recent article.
Those may indeed be stated protections, but the reality appears to be closer to the Soviet model, where law is sucked of the substance of justice. During the Stalanist purges in the 1930s, identifying and eventually liquidating enemies of the state followed a meticulous legal path that began with signed search warrants and ended with signed death warrants. The death of each enemy of the state was accompanied by a thick folder of forms, documents, and confessions.
I've been trying to understand why some conservatives still continue to support the amorality of rendition, torture, or incarceration without trial. It may come from a residual loyalty to our last president and a concern that dispensing with such approaches will invite terrorism. Perhaps there is something to be said for that, but that doesn't justify brushing away 700 years of jurisprudence that has developed to promote justice and to prevent despotism under the law.
Labels: law
posted by My Mall and News at
10:00 PM
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