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The presumption of innocence may be slowly dying in the courtrooms where our terror trials are being held, as Karen Greenberg, executive director of the Center on Law and Security at NYU Law School and author of The Least Worst Place: Guantanamo's First 100 Days, points out in today's post. Here's the curious thing, though: that presumption is stronger than ever when it comes to those who once ran or carried out the Global War on Terror. Afghanistan to Washington, Abu Ghraib to Guantanamo, they all continue to live within a bubble of official innocence.
Only the other day, our former president, George W. Bush, told NBC's Matt Lauer with visible pride that he had personally authorized the waterboarding of prisoners, an act which, throughout history, has been considered a form of "torture." In medieval Europe, where the term "enhanced interrogation techniques" had yet to be invented, it was simply known as "the water torture." As Dan Froomkin, the Huffington Post's senior Washington correspondent, recently pointed out, the U.S. has in the past prosecuted waterboarders as torturers.
So the former president fesses up and then takes the weasel route out, blaming his decision on "the lawyers." ("He said it did not fall within the anti-torture act. I'm not a lawyer. But you gotta trust the judgment of people around you, and I do.") Those lawyers were, of course, the crew of reprobates the Bush people put in place to give them the leeway to do anything. They then produced the infamous "torture memo," which in pretzled prose essentially declared open season on anything the president wants. Last January, those lawyers were, in turn, assured of no further legal consequences by the Obama Justice Department. ("Bush administration lawyers who paved the way for sleep deprivation and waterboarding of terrorism suspects exercised poor judgment but will not be referred to authorities for possible sanctions"")
If our government has never seen a terror suspect who wasn't guilty before trial, on the Seinfeldian theory that everything balances out in this great world of ours, no authority, major or minor, in the U.S. military, the CIA, or the government has evidently committed an abuse of power or been responsible for acts of torture or criminality that couldn't be absolved. Only recently after careful study, for instance, the Obama Justice Department decided that the CIA officials who willfully destroyed video evidence of the Agency's brutal acts of interrogation at "black sites" abroad should be similarly absolved of possible criminal charges.
Generally, you can't find an American above the absolute lowest levels who, in all these years of torture, murder, and outright slaughter has been found guilty of a thing. Even the nightmare of Abu Ghraib did not result in a single officer or civilian authority being convicted of anything, though it was clearly no rogue operation. It seems that all of them from the president on down played Monopoly with the American justice system with get-out-of-jail-free cards in their back pockets. As novelist Kurt Vonnegut used to say, so it goes. Tom
Guilty Until Proven Guilty
Threatening the Presumption of Innocence
By Karen GreenbergLiberty versus security, that initial heated debate over the war on terror, is again rearing its head with much bravado, nowhere more so than in our nation's courtrooms where American justice continues to pay the price.
Over the course of the past nine years, in the name of counterterrorism, there has been a notable and unappreciated development inside the criminal justice system that is cause for alarm: a growing, if often veiled, intolerance for basic guarantees of justice in cases where "national security" is invoked. This trend leaves the nation's justice system at risk.
Last weekend, as the Washington Post reported, Obama administration officials inadvertently called attention to this development in a non-decision over whether, where, and how to bring Khalid Sheikh Mohammed to trial. Usually referred to only by his initials, KSM was the operational mastermind behind the attacks of September 11, 2001. Captured in Pakistan in 2003, and transferred to the American prison at Guantanamo Bay in 2006, he is the highest ranking al-Qaeda member taken into U.S. custody since 9/11.
At issue is whether the Obama administration will try this close associate of Osama bin Laden via a military commission at Guantanamo or a jury of civilians in federal court in lower Manhattan or elsewhere. In a recent news conference, Attorney General Eric Holder mentioned that the decision was close. The response from New York's politicians -- Democratic Senator Charles Schumer, Republican Representative Peter King, and even Governor-elect Andrew Cuomo -- was prompt. There would, they insisted, be no 9/11 trial in New York City. At week's end, according to the Post, unidentified administration officials were backpedaling fast, saying that KSM would likely "remain in military detention without trial for the foreseeable future."
Since the moment a year ago when Holder first announced the administration's decision to try KSM in Manhattan (and four other Guantanamo detainees in federal courts), the fierce and growing opposition to such trials has focused mainly on issues of cost and security. It was claimed, in particular, that a trial of KSM would demand so much security that it would impede business in Manhattan, while putting a cost burden on New York City which could not be borne without federal aid. Behind such seemingly practical issues, though, lies a deeper current of opposition based on the fear of potential acquittal, the single unacceptable outcome for a trial in which terrorism is the charge.
This Wednesday's stunning acquittal of Guantanamo detainee Ahmed Khalfan Ghailani on all but one of 284 counts by a jury in a federal courtroom in Manhattan was the first sign in years that jurors felt confident enough to utter the word "acquittal" inside an American courtroom in a terror trial. (He may still get a life sentence for the single charge on which he was found guilty.) It was also the first time a jury had not been cowed by the notion that to be accused of terrorism is tantamount to being guilty. This verdict probably ensures that the Obama administration will never bring KSM before a jury of American civilians.
I've been following terrorism cases, both in civilian courts and at Guantanamo, for years and it would be easy enough for me to go off on a jag about the need to prove that civilian courts can try terrorists (without fear of a terrorist attack). Or I could write about how indefinite detention, a concept which lies outside the accepted norms of American civilian and military law, could take us down a path leading to the eradication of civil liberties on a far wider scale.
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