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Crisis of Confidence: How Washington Lost Faith in America’s Courts
As the 10th anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus. The event that “changed everything” did turn out to change Washington in ways more startling than most people realize. On terrorism and national security, to take an obvious (if seldom commented upon) example, the confidence of the U.S. government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts.
If, in fact, we are a “nation of laws,” you wouldn’t know it from Washington’s actions over the past few years. Nothing spoke more strikingly to that loss of faith, to our country’s increasing incapacity for meeting violence with the law, than the widely hailed decision to kill rather than capture Osama bin Laden.
Clearly, a key factor in that decision was a growing belief, widely shared within the national-security establishment, that none of our traditional or even newly created tribunals, civilian or military, could have handled a bin Laden trial. Washington’s faith went solely to Navy SEALs zooming into another country’s sovereign airspace on a moonless night on a mission to assassinate bin Laden, whether he offered the slightest resistance or not. It evidently seemed so much easier to the top officials overseeing the operation -- and so much less messy -- than bringing a confessed mass murderer into a courtroom in, or even anywhere near, the United States.
The decision to kill bin Laden on sight rather than capture him and bring him to trial followed hard on the heels of an ignominious Obama administration climb-down on its plan to try the “mastermind” of the 9/11 attacks, Khalid Sheikh Mohammed, or KSM, in a federal court in New York City. Captured in Pakistan in May 2003 and transferred to Guantanamo in 2006, his proposed trial was, under political pressure, returned to a military venue earlier this year.
Given the extraordinary record of underperformance by the military commissions system -- only six convictions in 10 years -- it’s hard to escape the conclusion that the United States has little faith in its ability to put on trial a man assumedly responsible for murdering thousands.
And don’t assume that these high-level examples of avoiding the court system are just knotty exceptions that prove the rule. There is evidence that the administration’s skepticism and faint-heartedness when it comes to using the judicial system risks becoming pervasive.
Pushing Guilt Before Trial
Needless to say, this backing away from courts of law as institutions appropriate for handling terrorism suspects began in the Bush-Cheney years. Top officials in the Bush administration believed civilian courts to be far too weak for the Global War on Terror they had declared. This, as they saw it, was largely because those courts would supposedly gift foreign terrorist suspects with a slew of American legal rights that might act as so many get-out-of-jail-free cards.
As a result, despite a shining record of terrorism convictions in civilian courts in the 1990s -- including the prosecutions of those responsible for the 1993 attempt to take down a tower of the World Trade Center -- President Bush issued a military order on November 13, 2001, that established the court-less contours of public debate to come. It mandated that non-American terrorists captured abroad would be put under the jurisdiction of the Pentagon, not the federal court system. This was “war,” after all, and the enemy had to be confronted by fighting men, not those sticklers for due process, civilian judges and juries.
The federal courts have, of course, continued to try American citizens and residents (and even, in a few cases, individuals captured abroad) in terror cases of all sorts -- with an 87% conviction rate for both violent and non-violent crimes. In fact, 2010 was a banner year for terrorism prosecutions when it came to American citizens and residents, and 2011 is following suit. As could have been predicted, in the vast majority of these cases -- all the ones that mattered -- there were convictions.
You might think, then, that the courts had proved their mettle against mounting criticism and distrust of a system said to be insufficiently harsh. And initially, Obama's Department of Justice defended civilian courts as resilient and flexible enough to try terror cases.
But that didn’t last. Recently, the Obama administration has reinforced a policy (begun under President Bush) which offers an ominous new twist on American justice: punishment before trial. It has, for example, relied upon various extreme methods of pre-trial isolation -- including a version of restrictive orders known as Special Administrative Measures, or SAMs -- that reek of punitiveness and have often caused severe psychological deterioration in suspects awaiting trial on terrorism charges. The most noteworthy case of this is Syed Fahad Hashmi’s. An American citizen arrested while studying in England, Hashmi had allowed an acquaintance, Mohammed Junaid Babar, to stay in his apartment for two weeks. Babar, who testified against Hashmi and was later released, allegedly had socks, ponchos, and raingear intended for al-Qaeda in his luggage and allegedly used Hashmi’s cell phone to call terrorist conspirators. Hashmi, accused of “material support” for al-Qaeda, was kept under SAMs for three years without trial -- until he finally pled guilty.
The urge to punish before a verdict comes in reflects the same deep-seated conviction that the U.S. court system is simply not to be trusted to do its job. Two recent cases -- that of whistleblowers Thomas Drake and Bradley Manning -- illustrate how, in cases where national security is believed to be at stake, Obama-era pre-trial treatment has taken up the distrust of the courts, civilian or military, that characterized the Bush years.
Drake, an executive for the National Security Agency (NSA), became a whistleblower over what he considered mistaken policy decisions about an ill-performing data-sifting program which, among other things, he thought squandered taxpayer money. Subsequently, he revealed his disagreement with the agency’s warrantless wire-tapping program, which he believed overstepped legal boundaries. Charged initially with violating the Espionage Act and threatened with a draconian 35-year jail sentence, Drake finally pled this past June to a misdemeanor count of “exceeding the authorized use of a government computer.”
In Drake’s four-year saga, his pre-punishment took the form not of pre-trial detention but of the destruction of his livelihood. He was initially fired from the NSA and from the National Defense University position to which the NSA had assigned him. Once indicted in 2010, he was forced to resign from a subsequent teaching post at Strayer University. All told, the formal and informal hounding of Drake resulted in the loss of his jobs and pension, as well as $82,000 in legal costs. Ultimately, Drake was sentenced to a year’s probation and 240 hours of mandatory community service. By that time, he had been ruined financially and professionally, thanks to the government’s disparagement of him and the multi-year delay between its accusations and the lodging of formal charges against him. Drake now works at an Apple Store. In other words, well before the government took its chances in court, Thomas Drake was punished.
Another highly publicized case where punishment preceded trial has been the mistreatment of Army Private Bradley Manning while in military custody in a Marine brig in Quantico, Virginia, awaiting charges. The Obama administration believes he turned over a trove of secret military and State Department documents to the website WikiLeaks. Following his arrest, Manning was kept in subhuman conditions. He was forced to sleep naked and to strip for daily inspections, though as news about his situation generated bad publicity, he was eventually allowed to sleep in a “tear-proof” gown.
There is something deeply disturbing about the very different ways Manning and Drake were pre-punished by the government -- both directly in the case of Manning and indirectly in the case of Drake -- before being given due process of any kind. Like bin Laden’s killing, both cases reflect an unspoken worry in Washington that our courts will prove insufficiently ruthless and so incapable of giving the “obviously guilty” what they “obviously” deserve.
The Courts Take Notice
As it turns out, the judicial system hasn’t taken the government’s new attitude lying down. Various judges and juries have, in fact, shown themselves to be unfazed by both public and governmental pressures and have, in terror and national security cases, demonstrated signs of balance and of a concern for justice, rather than being driven by a blind sense of revenge.
In the past year, there has been an unprecedented number of high-profile terrorism trials. All have resulted in convictions, which have nonetheless not reflected the unstinting harshness that critics of court-centered counterterrorism insist upon. In the case of Ahmed Ghailani, the sole Guantanamo detainee to face trial in the nation’s criminal justice system, the jury, having done its work of assessing the evidence, acquitted the defendant on 284 of 285 counts, including all the murder charges associated with the 1998 bombings of the U.S. embassies in Kenya and Tanzania. On the single count on which he was convicted, however, Ghailani was given a life sentence without parole.
Meanwhile, a high-profile terrorism case -- that of Tagawwur Rana -- ended in a jury acquittal on its most serious charge. Rana had been accused of cooperating in the 2008 terrorist attacks in Mumbai, India, which resulted in the deaths of more than 160 individuals. The jury found Rana guilty of material support, but not of helping to coordinate the attack.
These cases and others like them have, of course, been fodder for all the usual critics who consider anything but a 100% conviction rate on all charges in all cases to be a sure sign not of the justice system’s strength, but of its fundamental weakness. And yet, such cases have showcased just how effectively the system still works, in a more nuanced way than in the previous near-decade, as well as in a subtler and more just way than Washington has managed to approximate over that same period. Despite the fears, pressures, and scare tactics that are entangled with all such terror cases, we now have living proof that juries can think for themselves, and guilt can be a partial matter, rather than a Washington slam-dunk.
Of late, federal judges on such cases also seem to have been signaling to the government’s representatives that they must be more restrained in their approach to national security cases, both in and out of court. In late June, for instance, during the sentencing of three of the men convicted of conspiring to bomb two synagogues in Riverdale, New York, and to launch a Stinger missile aimed at aircraft over Newburgh’s Air National Guard Base, Judge Colleen McMahon struck back at the government’s case. “I believe beyond a shadow of a doubt,” she said, “that there would have been no crime here except the government instigated it, planned it, and brought it to fruition. That does not mean that there was no crime. The jury concluded that you were not entrapped, and I see no basis to overturn their verdict.”
In the Drake case, Judge Richard Bennett was similarly distraught about the evident excesses in the government’s approach. At sentencing for the single minor count to which Drake agreed to plead, the judge bluntly refused to impose the $50,000 fine the prosecution was pushing for on the grounds that punishment had already been administered -- prior to the court process. “There has been financial devastation wrought upon this defendant,” said Bennett, “that far exceeds any fine that can be imposed by me. And I'm not going to add to that in any way. And it's very obvious to me in terms of some of the irritation I've expressed… not only my concern over the delay in this case… [but also the prosecution’s] inability to explain … the delay in this case… I think that somebody somewhere in the U.S. government has to say… that the American public deserves better than this."
In the recent jury decisions, as in the growing expressions of judicial dissatisfaction, an optimist might find signs that the system is finally starting to right itself. On the other hand, a pessimist might come to the conclusion that the government will, in the future, simply put even more energy into avoiding the court system.
The bottom line is that the Obama administration, like its predecessor, defines success in terrorism prosecutions not by assessing whether or not due process and fair verdicts are administered, but solely in terms of what they deem proper punishment for those accused of violating national security -- especially when doing so minimizes partisan political clashes. By refusing to rein in its evident distrust of the judicial system when it comes to national security, the government is perpetuating a legal landscape that, to this day, lies in the shadow of Osama bin Laden.
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26 Comments so far
Show AllIt’s the torture.
The Department of Justice can’t parade the victims of torture into a Court least it open one F’n ugly can of worms. Ugly F’n worms that included that various branches of the government of the United States harbor more criminals than al Qaeda, some of which might have been inclined to make a deal to stay out of jail that would have opened worm cans at 1600 Pennsylvania Ave.
In bin Laden’s case unless he confessed to a string of crimes that crossed three decades and four continents while also giving up a few hundred coconspirators (which would have included a couple of governments the U.S. has branded allies) the wingers would have gone ballistic because bin Laden was not being waterboarded like he would have been if real men, like Dick Cheney, were in charge.
So it's also the politics.
The criminal justice system is biased enough (consider all the "guilty" people proven innocent with DNA evidence lately) but even THAT isn't sufficiently rigged to please the White House, not even with that high terrorism-conviction rate?
They're hiding something, all right.
Maybe it's the torture -- enough to get an acquittal in a lot of cases.
But maybe it's something else, something more.
I suspect they fear that the whole war-on-terror house of cards will fall if they ever have to put the facts before a jury.
sj
i guess no one bothered to tell this lady that 9/11 was an act committed by persons unknown for reasons of treasonous desire to further secure command and control of what was left of the government (and it wasn't much)
hint: they were not living in caves in afghanistan
she also seems to be under the impression that there was a legal system in place to degenerate in the first place
ask some of the 18-20 year old black boys looking at 40 years or more of hard time what they think of american justice
how about the judges in penn. who were recently sent to jail - one for 28 years - for accepting kickbacks for sending teens to prison for innocuous offenses
"Federal prosecutors accused Ciavarella and a second judge, Michael Conahan, of taking more than $2m in bribes from the builder of the PA Child Care and Western PA Child Care detention centres and extorting hundreds of thousands of dollars from the facilities' co-owner."
http://www.guardian.co.uk/world/2011/aug/11/kids-for-cash-judge-pennsylvania
we torture now - for fuck's sakes think about that - and for no reason
"But a closer look at prisoner interrogations suggests that the harsh techniques played a small role at most in identifying Bin Laden’s trusted courier and exposing his hide-out. One detainee who apparently was subjected to some tough treatment provided a crucial description of the courier, according to current and former officials briefed on the interrogations. But two prisoners who underwent some of the harshest treatment — including Khalid Shaikh Mohammed, who was waterboarded 183 times — repeatedly misled their interrogators about the courier’s identity."
http://www.nytimes.com/2011/05/04/us/politics/04torture.html
aw shucks we was just havin' fun
intelligence - we don't need no stinkin' intelligence
we hold prisoners with no due process and no habeus corpus
most of them with no evidence to support a charge
"The 48 Guantánamo Bay detainees whom the Obama administration has decided to keep holding without trial include several for whom there is no evidence of involvement in any specific terrorist plot, according to a report disclosed Friday."
http://www.nytimes.com/2010/05/29/us/politics/29gitmo.html
list of lawyers who have resigned over this disgrace:
"This is a list of resignations from the Guantanamo military commission, including those of Stuart Couch, Morris Davis, Fred Borch, Major Robert Preston, Captain John Carr, USAF Captain Carrie Wolf, and Darrel Vandeveld. They were among the military lawyers tasked to serve as prosecutors of the suspected terrorists imprisoned at the American Guantanamo Bay detainment camp. The military lawyers requested transfers to other assignments because they had concerns that the proceedings would be innately unjust."
http://en.wikipedia.org/wiki/List_of_resignations_from_the_Guantanamo_military_commission
finally, from dr paul craig roberts:
"The lawlessness of the US government, which has been creeping up on us for decades, broke into a full gallop in the years of the Bush/Cheney/Obama regimes. Today the government operates above the law, yet maintains that it is a democracy bringing the same to Muslims by force of arms, only briefly being sidetracked by sponsoring a military coup against democracy in Honduras and attempting to overthrow the democratic government in Venezuela.
As 2011 dawns, public discourse in America has the country primed for a fascist dictatorship.The situation will be worse by 2012. The most uncomfortable truth that emerges from the WikiLeaks saga is that American public discourse consists of cries for revenge against those who tell us truths. The vicious mendacity of the US government knows no restraint. Whether or not international law can save Julian Assange from the clutches of the Americans or death by a government black ops unit, both executive and legislative branches are working assiduously to establish the National Security State as the highest value and truth as its greatest enemy.
America’s future is the world of Winston Smith."
http://hamsayeh.net/archive/180-the-menu-for-2011-state-lawlessness-on-the-rampage.html
for those who don't know:
"Winston Smith is a fictional character and the protagonist of George Orwell's 1949 novel Nineteen Eighty-Four. The character was employed by Orwell as an everyman in the setting of the novel, a "central eye ... [the reader] can readily identify with".[1] Winston Smith works as a clerk in the Records Department of the Ministry of Truth, where his job is to rewrite historical documents so they match the constantly changing current party line"
http://en.wikipedia.org/wiki/Winston_Smith
I've always said that if we wanted to bomb the places responsible for 9-11 we should start w/ Saudi Arabia, West Germany and Florida.
MED: I think your post reveals a lot of compelling information and related data. Thank you for sharing it.
Here's something, a dot if you will, that no one has yet connected.
To the extent that those who act against the government''s interests may be charged with aiding and abeting terrorism, these extra-judicial "court" shows of justice set a very dangerous precedent. Essentially, they are putting into place a means of charging citizens with alleged crimes, where only a military tribunal will be afforded. We all know that the military is known for kangaroo courts and a very narrow concept of justice. Is the way being paved to make this sort of operation, what's in store for those who stand up to The Beast?
Don't forget, when Bush got Yoo to massage the law to make torture seem like a viable way to handle prisoners, no course correction really ever altered that protocol. Obama, as is the case with so many policies, just continues in a supposed "kinder, gentler" manner.
The guilty-until-proven innocent handling of those who DARED stand up to the U.S MIC juggernaut is to today's conscientious citizen, what leaving the strung up body of a recently hung corpse was to "justice" 150 years ago.
Post-law, post-justice Amerika... with a prison on every block, and one set of laws for those who can pay for justice, and another... for the rest.
But... "They're fighting for our freedoms!"
hey sioux rose - hope you are well
yours is a good point - one that already bears fruit for the nwo
the kangaroo courts/military tribunals are very dangerous, needless to say
they do not respect basic tenets of law such as habeas corpus, due process, the right to an attorney and a right to not only have all the evidence disclosed but the right to confront the accuser in the court itself
as i pointed out above - the accused in guantanamo bay have no charges against them even after 8-10 years of confinement, no evidence against them has been presented even to the kangaroo court, but that's ok because even if there is some evidence extant the accused have no right to know what it is
many are without council of any kind
nor do they have the right to challenge these charges - anywhere
this is stalinist in its fury
maoist in its dogma
"The Trial (Kafka's original German title: Der Process,[1] later as Der Prozess and Der Prozeß) is a novel by Franz Kafka, first published in 1925. One of Kafka's best-known works, it tells the story of a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed neither to him nor the reader."
http://en.wikipedia.org/wiki/The_Trial
homeland security is fascist nazism run amok on the good ole usa
just the title homeland is more nazi than the gubenator schwarrennazi - it is not an american word
this creature janet napolitano, of which there seems to be no end in supply - again i am reminded of alien reptiles - is pushing forward the notion that the new terrorist threat that faces the country is "domestic terrorism"
these terrorists she asserts could be any of the following: right wing extremists, left wing extremists, environmentalists, war veterans, people who refer to their "rights" a lot, and people who refer to the constitution repeatedly
oh and let's not forget "those who criticize the government"
here's how she talks:
"“Let me be very clear: We monitor the risks of violent extremism taking root here in the United States. We don’t have the luxury of focusing our efforts on one group; we must protect the country from terrorism whether foreign or homegrown, and regardless of the ideology that motivates its violence,” Ms. Napolitano said. "
http://www.washingtontimes.com/news/2009/apr/16/napolitano-stands-rightwing-extremism/
they are now after everyone especially those as you say sioux rose who stand up to the beast
the dhs paper on extremism in america is called:
(U//FOUO) Rightwing Extremism: Current
Economic and Political Climate Fueling
Resurgence in Radicalization and Recruitment
download or view it here on dhs's website
http://www.fas.org/irp/eprint/rightwing.pdf
here is one of their basic "findings"
Rightwing extremists have capitalized on the election of the first
African American president, and are focusing their efforts to recruit new
members, mobilize existing supporters, and broaden their scope and appeal
through propaganda, but they have not yet turned to attack planning.
i got a kick out of that
the point being is this: if you are deemed to be a terrorist by the dhs for any reason whatsoever then they are within the law, such as it is, that they may detain you indefinitely, rendition you to any country of their choosing for torture sessions that may include lethal force, and they may if they wish take you before a tribunal and charge and convict you without any evidence - or not
so, yeh, i think you make a good point
Hello, Med... I often use the analogy of Kafka's "The Trial," myself.
And the way that environmental activists are now loosely thrown into the terrorist (eco-terrorist, I believe is the terminology) mixture, when so many rights and liberties are being done away with, is BEYOND chilling. The recent whistleblower cases, that of Tm De Christopher, Bradley Manning, Julian Assange are all on display to show citizens what they may face for stepping out of line.
As the corporate heavies increasingly influence state policy, it could be argued that anyone who does damage to a corporation--either by galvanizing an effective boycott, or by throwing rocks through headquarters' windows--could be "written up" as a terrorist threat.
The average person thinks that the slip-siding away of all the hard-won liberties will only impact someone else, someone who is "doing the wrong thing," and deserves to be punished. They have NO idea what these vanishing liberties mean to the entire fabric of this nation.
The one area I vehemently disagree with you is on climate change, and it seems to me that Earth Mother/Gaia is going to bat last... and all the conceits of man will prove like dreams unto a child, when SHE really lets loose. The past year's climate-related events, the most expensive year on record for such items, in my view represents just her warming up stage.
Just as most mothers give their children a warning, before a little slap... we have been given the warning. If humanity doesn't stop the burning of fossil fuels at a level of abject disregard, if the monsters (who should be construed as the real eco-terrorists!) who wish to build the Canadian tar sands pipeline get their way, added to more mountains blasted away with coal detritus entering streams and once pristine rivers... then we will see what James Lovelock meant by th REVENGE of Gaia.
What's being destroyed by the corporations in the form of a march and plunder over precious ecosystems constitutes an extinction event... thus far, in slow motion. It will be this type of event that will throw monkey wrenches into The Machine to stop The Beast. For those in the Pengagon's sights (which may one day mean those of us who dissent against our very unjust, unlawful current government), the day of Gaia setting The Balance can't come soon enough.
I too, think that 9/11 has a lot to do with it. That is, the lack of evidence for the official conspiracy theory, the holes in that theory, and the fears of the powerful forces which rely upon that fiction to justify their police state and protect their game from scrutiny.
Good post by Medmedude.
Karen Greenberg offers poor analysis IMO.
The courts are even more corrupt than the other 2 branches of government, and there are many examples of that.
OBL has been dead for years in all probability. Further, the US never indicted him for the events of 11 September, so how could they possibly bring him back for trial?
While many of her points are valid and relevant, for the most part her analysis does not comport with reality.
"Crisis of Confidence: How Washington Lost Faith in America’s Courts"
The headline is far too weak. A more accurate one would be:
"End of Democracy: How the USA Abandoned Rule of Law"
The "lack of faith" shown by the US Government in "Courts of law" has nothing to do with their perceived lack of effectiveness in obtaining a conviction.
It has everything to do with the absolute lack of evidence against the accused on the part of that same Government. The reason they preemptively decided to bypass the US Court Systems is because they knew all along that no such evidence would be forthcoming.
In short this was not about the urge to punish before a verdict, it was about knowing the accused were innocent before a trial. It was done to protect those that are truly guilty of the crimes.
Look to the Anthrax case where the FBI had to finally resort to claiming a dead man committed the crimes. It was an absolute farce and those that were guilty still walk free. They walk free not because the authorities are unable to find any evidence but because of WHO the person(s) are.
If they could nail "Arab Terrorists" for the frauds in the banking systems they would try and do that too.
Excellent point! And don't forget how evidence gets redacted, or hidden behind "States' Secrets," and so forth. What a system... the envy of a 3rd world dictator.
This article goes a long way in demonstrating that the last thing that the government wishes to uncover is something which apparently is rather quaint these days and that is the truth. But then the judicial system of the United States has never been known for its egalitarianism.
"This is a court of law...not a court of justice."-Justice Oliver Wendell Holmes, Jr.
"Laws are maintained in credit, not because they are essentially just, but because they are laws. It is the mystical foundation of their authority; they have none other.
They are often made by fools; more often by men who in hatred of equality have want of equity; but ever by men who are vain and irresolute. There is nothing so grossly and largely offensive, nor so ordinarily wrongful, as the laws."- Michel de Montaigne
"Laws are rules established by men who are in control of organized violence for the nonfulfilment of which those who do not fulfil them are subjected to personal injuries, the loss of liberty, and even capital punishment.
In this definition is contained the answer to the question as to what gives men the power to establish laws. What gives them the power to establish laws is the same thing which secures obedience to them-organized violence."-from The Slavery of Our Times by Leo Tolstoy
"The more corrupt the republic, the more numerous the laws."- from Annals by Tacitus
"Washington did not lose faith in the courts, it has purposely subverted them.
True. The United Stateas Powers That Be don't want to go to the trouble of staging "show trials" as was done in the Stalinist U.S.S.R. Trashing the justice system, flawed though it was, takes us a long way down the road to total totalitarianism.
How is it only, "the confidence of the U.S. government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts?" Being Executive Director of the Center on Law and Security at the New York University School of Law, Karen Greenberg reveals her own unwitting bias by assuming whereas the U.S. political system is wanting, the judicial system is not.
Sorry Ms. Greenberg, the judiciary is increasingly showing itself to be as dysfunctional as you perceive the political system. Having previously commented on this site in criticism of the American judiciary, only to be met with vitriol, I foolishly comment again. Rather typically for Americans, members of the judiciary are almost uniformly unaware of jurisprudence, or the philosophy of law.
Dominant in American law schools since at least the first or second decade of the Twentieth Century, is legal realism. For example, up to at least the early 1970s, required of all incoming first year students at Boalt Hall, University of California, Berkeley, law school, was Karl Llewellyn's The Bramble Bush.
Ushered into the law by legal realism is a descriptive, not prescriptive, psychological/sociological/anthropological conception: Law is What Members of the Legal System Do. Not what they ought to do, but what they do. At its most extreme in the 1920s was the "breakfast theory of law:" What a judge does is determined by what the judge had for breakfast that morning.
Fostered by the increasingly vitriolic cultural/political divisions in the United States, members of the judiciary seem increasingly more prone to unabashedly render decisions founded on ideology, rather than attempting to conform to precedent. Although traditionally all nine members of the Supreme Court attend the State of the Union Address, three of the conservative members of the Court did not attend the 2011 State of the Union Address. Since most current "justices" have been appointed by Republicans, many appear unabashedly exhibiting their ideological biases.
Indeed, empirical evidence verifies this. There is a distinct difference in how judges appointed by a Republican President and a Democratic President proceed in and decide cases. What appears to have changed is among many of the Republican appointees, their party identity is more blatantly exhibited. Overlooked by Ms. Greenberg is the old aphorism, "Absolute power corrupts absolutely." Judges being political appointees who serve for life, why 'n the hell do you think they are going to be more noble than other mortals?
Putting aside legal realism, even conforming to precedent institutionalizes bias. By virtue of stare decisis, previous cultural discrimination becomes fixed in the law. In a previous exchange, three critics kept insisting the disproportionate conviction rate of African Americans proved African Americans are more disposed to illegal behavior. Similarly, discrimination against women was justified on the ground that women are more prone to take time off from work to deal with family matters. Thus, rather than punishing their loutish irresponsible husbands, the nobility of mothers was provided as grounds for punishing the mothers.
Never in the exchange did the three acknowledge discriminatory treatment could possibly be attributable to the judiciary itself. Ms. Greenberg appears to exhibit the same blindness. This blindness is understandable in an attorney. After all, who wants to blame themselves, Ms. Greenberg unwittingly exhibiting the problem in the current state of the judiciary. Presumed is while the legal system is sainted, all else is corrupt. Sorry Ms. Greenberg, it is a matter of "physician, heal thy self," just replacing "attorney" for "physician."
The court could have convicted the alleged terrorists then ruled that terrorism cases do not set precedent that evidence obtained through torture violate a terrorist’s rights citing Bush V. Gore as precedent that some cases do not set legal precedent since the Court had already ruled that Bush V. Gore did not set precedent.
Yes, this could have been done. But, sadly and pathetically, Gore v. Bush is now being cited as precedent in Federal courts, despite the explicit statement in the majority opinion that it is not precedent. It is this sort of process in the judicial system that is the aim of my criticism.
Mine too, it's a Catch 22.5
PHILANDREL: Thank you for sharing an interesting post. There's a film, "The Advocate," that is said to be historically-based. It's the story of a lawyer during the times of the witch hunts. Did you know that ANIMALS were also put on trial during these witch hunts? Then, too, there was Inquisition. Thus the very premise of mundane law is itself all too malleable and subject to human indiscretions.
I'd like to think justices are just, but history has so many examples of law bending to suit those in power. And when power appoints the judges, the quid pro quo "philosophical" relationship is, of course, profoundly compromised.
I guess we should take one piece of optimism from Ms. Greenberg's article: that juries still manage to get "it" right, in spite of compromised judges and tainted evidence.
See above.
"rather than being driven by a blind sense of revenge"
It is not revenge that drives them, but fear. The unique nature of fear is this: it erases any consideration of justice and reasonableness whatsoever. It justifies any action.
As previous commenters have noted, it's fatuous or disingenuous at best to assert that "the confidence of the U.S. government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts".
Since September 11, 2001, the Amerikan Imperium-- the authoritarian Hollow State ruled by a Unitary Executive and a centralized, fused Homeland Security apparatus-- has emerged as a naked mailed fist, albeit a fist festooned with red, white, and blue bunting.
It's obvious to any reasonable observer that, although the forms and rhetoric remain unchanged, the authoritarian government regards the law not as an independent, dispassionate edifice and process for meting out justice, but as just another instrument or conduit to facilitate the despotic executive's ends.
Put more concisely, the "government" regards the law and its institutions as its tool-- an extension of executive power.
Even a despotic authoritarian government is unable or unwilling to abolish traditional processes and trappings of the judiciary in one fell swoop. Instead, it's accomplished by incremental change, jump-started and helped along by legislative atrocities like the Patriot Act.
So reason and "justice" still prevail fitfully and sporadically; a principled judge or jury can still occasionally thwart or impede the overclass-sponsored executive juggernaut here and there, now and then.
But the executive powers and principalities, including the military and state-security executives, are obviously operating on the atavistic principle of political force majeure, i.e. Might Is Right.
They freely, and with impunity, simply disregard and avoid laws and established judicial venues that are risky and inconvenient. They by turns run roughshod over and around the law and judiciary, or obstruct and vitiate its power by tasking its ministers of "justice" to blithely advocate and defend the legality of their positions, regardless of how outrageous these positions are.
Meanwhile, a compliant legislature of allies and enablers chews through traditional legal and Constitutional rights like termites infesting a wooden substructure, meeting the executive halfway by turning into civil-liberties sawdust what the executive is reducing to splinters from the other side.
The masses of ordinary unprivileged persons, citizens and non-citizens alike, are caught between the hammer and the anvil of political institutions nominally empowered by We the People.
This does not evidence a maladministration's "skepticism and faint-heartedness", as the author puts. It evidences willfully cynical and wantonly aggressive self-assertiveness.
And incidentally, I find it disappointing and galling that Ms. Greenberg lapses into an unfortunate defensiveness toward, or rationalization of, the Amerikan judiciary to which lawyers especially seem prone to succumb: pointing up the prospect that regular Amerikan courts are capable of being just as pitiless and draconian as the extra-legal schemes advocated by the most reactionary political hard-liners.
Although those who insist on this point are either oblivious to its implications, or in denial of them, typical expressions like "... the courts had proved their mettle against mounting criticism and distrust of a system said to be insufficiently harsh" may be paraphrased as, "Hey! Don't sell the regular courts short! Why, given the chance they can fill up the gulags and Bastilles just as diligently and efficiently as those superfluous kangaroo courts you nay-sayers are trying to unnecessarily foist upon us!"
This insistence that radical reforms-- actually, deforms-- are unwise and unnecessary because the existing institutions are quite up to snuff was also voiced to oppose the doubly-draconian FISA legislation enacted in 2008-- the law Obama supported after unequivocally pledging to oppose.
At least one well-regarded lawyer/blogger objected to the new, improved FISA legislation because after all, the original FISA legislation created a Star Chamber in which state security and law enforcement agencies could readily obtain surveillance warrants upon the slightest pretext!
He didn't put it quite like that of course; instead it was expressed as a positive, something like "the existing FISA courts are entirely adequate to the task". This implicitly validated the problematic FISA court as, by and large, legitimate and acceptable.
This strikes me as a misplaced variation of the "if it ain't broke, don't fix it", rationale. Likewise, I see no virtue in touting the "regular courts'" capacity for administering ruthless, regime-friendly "justice"-- which is what the euphemism "proving their mettle" really means. No thanks!
My guess is that this twisted defense comes to lawyers' minds so readily because it arises from a detached and incipiently supercilious "debater's logic"; it presents itself as a reliable point of argumentation in service of challenging the worse evil of blatant circumvention or abandonment of established and respected judicial institutions.
In any case, what Amerikans are facing is not a government in a crisis of confidence or faith in the Amerikan judiciary. It's a government with exclusive overweening confidence and faith in itself, in the process of arrogating maximum political power and control.
The crisis is all We the People's.
O.S. Your post gets the AAA+ rating; it's quite brilliantly stated. Thanks for sharing... you should send THIS to the author. (If you dare.)
Thanks for writing your commentary. This is the worst piece I've seen from Tom Dispatch; her 9th for that ezine, and seemingly at odds with her other essays. Her essays published by CD are listed here, http://www.commondreams.org/karen-j-greenberg Finding an email addy for her is tough. After coming down hard on BO, is this a sop as it certainly seems?