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. . . And Justice For Whom?

By Alexa

What will be the legacy of George W. Bush? I can't imagine a single volume of history will ever fully answer that question, but the word "justice" will likely be absent from the historical record. Our self-described "war president" has never shown an interest in that which is fair or just.

"Lady Justice" is seen on many 19th Century courthouses. She is shown blindfolded, holding an upraised sword in her right hand, and a pair of scales in the left.  

The truth of justice is a consequence of the ideal of reciprocity, but the scales mean balance.   Not only does justice restore the emotional balance in a community, it specifically means that what is done to the criminal balances what he has done to his victims.  The sword means deciveness.  

And this is the epitome of all that justice is not.

2,487 days of illegal imprisonment.

Buried amongst the untold affronts to the Bill of Rights, the Constitution and the very spirit of America, the Military Commission Act contains a definition of "wrongfully aiding the enemy" which labels all American citizens who breach their "allegiance" to President Bush and the actions of his government as terrorists subject to possible arrest, torture and conviction in front of a military tribunal.

"No court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."

Source: THOMAS Library of Congress.

n section 950j., the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court.

Alberto Gonzales previously threatened federal judges to shut up and not question Bush's authority on the torture of detainees.

When the USA PATRIOT act was rushed through at the height of an anthrax scare without any members of Congress even having time to read it, we were assured that it was to fight terrorists and would not be used against the American people.

Since then a plethora of cases whereby the USA PATRIOT act was used against U.S. citizens emerged, including the internment without trial for over three years of Jose Padilla, an American citizen who was finally released after no evidence of terrorism was uncovered.

The disconnect between the allegations aired in news conferences and the charges lodged in court are disturbing. If Padilla was in fact plotting with Al Qaeda to detonate a dirty bomb, shouldn't he be tried for that crime, and punished accordingly? Why proceed instead on a paper-thin set of charges that might lead to his acquittal and release?

The answer is, in a word, torture. Administration sources explained to New York Times reporters Douglas Jehl and Eric Lichtblau that the reason they did not charge Padilla with more serious crimes is that the evidence allegedly supporting those charges was extracted from high-level Al Qaeda detainees -- Khalid Sheikh Mohammed and Abu Zubeida -- through questionable means. They are being held in undisclosed locations and reportedly have been interrogated with such tactics as "waterboarding," in which the suspect is made to think he will drown if he doesn't talk.

Evidence obtained through waterboarding would never be admissible in a court of law. The Supreme Court has long made clear that evidence obtained through any physical coercion is per se inadmissible. And this is no technicality. Such measures are said to produce inherently unreliable evidence and "shock the conscience."

The Padilla case illustrates one of the oft-overlooked costs of torture and other means of coercive interrogation.  Because evidence obtained through coercion is universally viewed as inadmissible in court, the tactics effectively immunize suspects and those they implicate from prosecution.

This problem not only infected the Padilla case but virtually everyone held at Guantanamo Bay, Cuba, and in secret CIA "black sites." The U.S. is holding about 300 "enemy combatants" at Guantanamo and reportedly another 30 or more in undisclosed locations. Many of these are alleged to be Al Qaeda fighters, some very high level.

Anyone who fights for Al Qaeda is guilty of war crimes, as Al Qaeda has no right to engage in war and has adopted a policy and practice of targeting civilians. In theory, we should be able to try them, convict them and imprison them.

But more than five years after President Bush created military tribunals, not a single case has gone to trial. Only a handful of the hundreds of detainees have even been charged. One probable reason for the military's reluctance is the real risk that any trial will turn into a trial of the United States' own interrogation practices. Although the military tribunal rules do not exclude the use of testimony extracted by torture, no trial will ever be viewed as legitimate if it allows such testimony, and defense lawyers are certain to make this a central issue in any proceeding.

In short, by electing early on to violate the universal prohibition on torture and cruel, inhumane and degrading treatment, the administration has not only inflicted unconscionable harm on detainees from Abu Ghraib to Guantanamo, and done incalculable damage to the U.S. image abroad, it has painted itself into a corner. It is becoming increasingly unacceptable to hold so-called enemy combatants indefinitely without trial. But we have shielded the vast majority of them from being tried for the wrongs they may well have committed.

President Bush vowed shortly after 9/11 that he would capture the terrorists and bring them to justice. But his own tactics have made that promise impossible to deliver.  

Full post as published by Never In Our Names on October 28, 2008 (boomark / email).