How Civilized Men Might Live

Over on The Volokh Conspiracy, an attorney for the recently ruled-on Al-Marri weighs in on the nature of terrorism and security:

Whether one trusts or distrusts President Bush and the manner in which he has prosecuted "The War on Terror," the powers he has asserted to himself (to the Executive Branch) -- the power to detain an individual lawfully present insde the United States based solely upon a Presidential edict and the triple hearsay declaration of a Pentagon bureaucrat -- could easily be abused by him or a future resident of the White House. Of course, while anything is possible, it is fair to say that to date no terrorist has obtained (much less detonated) a nuclear weapon anywhere in the world, whereas elected leaders routinely abuse power; such is the history of man. I do not think of myself as an alarmist, but I am alarmed that educated people can characterize as "bizarre" the possibility that government powers could be abused. Indeed, it was in response to such abuses that the Bill of Rights was amended to the Constitution in the first instance.

[...] I should add that I am the "Mark Berman" who is identified as al-Marri's "Next Friend" in the caption of the Fourth Circuit case, and have represented him since he was a run-of-the-mill criminal defendant, charged in the Southern District of New York with credit card fraud and possessing of constitutional rights. My views are those of an advocate. As a personal aside, however, I have spent the past year "commuting" back and forth from Israel where my family has been living. Israel, of course, is a very small country that lives not only with the threat of terrorism and war on its home soil, but actual terrorism and war on its home soil almost every day. It is surrounded not by giant friends and allies like Canada and Mexico but by hostile neighbors in Lebanon, Syria, Gaza, and the West Bank. All of its borders (including those with Jordan and Egypt) are porous. Until it built a security/border wall and fences, Israel's Palestinian neighbors would successfully send their youth to blow themselves up in Tel Aviv cafes, Netanya hotels, and Jerusalem buses. Rockets launched from Gaza fall on Sderot and surrounding areas daily, almost two years after the last Israeli left. Plus, there is the growing threat of complete nuclear annihilation by Iran. All to say that Israelis have a lot to be afraid of in actuality, and not only hypothetically.

[...] Yet, one does not often see or hear the sense of panic and fear mongering that has become charcteristic of American discourse regarding terrorism and its suppression (by politicians and the media, and which is implicit in the hypo which started this discussion). Israel is not a country that has a Constitution or a Bill of Rights like ours, yet, even here, fully justified fear of future terrorist attacks has not led to a police-state system inside of Israel in which people can be detained indefinitely without charge simply because the Prime Minister says so. The police are free to act aggressively to protect the population, but there is still a legal process with recourse to the courts; whether that process should be more robust or applied more even-handedly can be debated, but the point is that the decision to idefinitely detain an individual is not left to executive say-so alone, which is the authority President Bush has asserted under our Constitution.

Some Small Hope

In the context of Captain Keith Allred's decision to dismiss the case against Salim Hamdan (one of the more infamous Gitmo detainees), Scott Horton of Harper's draws some interesting historical parallels

I think for instance of Edmund Burke’s Letter to the Sheriffs of Bristol, a minor masterpiece which is not read and appreciated as it should be today. And reading Judge Allred’s opinion, for some strange reason, I kept hearing the words of Edmund Burke in the background, growing louder and louder with each subsequent paragraph.

The Letter to the Sheriffs of Bristol is a simple document – the transmission to two law-enforcement officers of his constituency of an act that the government of Lord North has put to Parliament. The act suspended the great writ of habeas corpus - not for the good burghers of Bristol, of course, but only for a group of murderous insurrectionists who then stood in open and bloody revolt against their lawful sovereign. And the act went further, namely, it provided that these miserable wretches, whose insolence and defiance now extended to the seas, could be labeled pirates at the King’s discretion, and thus robbed of the right to be tried in courts. They would be dealt with in a summary fashion by the King’s military. And the act also provided that these miscreants could be transported across the ocean to England and held there to await their summary disposition – a step which justified the suspension of habeas corpus, since otherwise an English court might demand an accounting for their brutal treatment and incarceration.

[...]

Let the Great Writ stand, said Burke, and from this point be suspicious when the Government employs the label “pirate” to shorten the rights of those it sees as enemies. These words reflect the sum and the spirit of the rulings out of Guantánamo. They reflect the spirit of liberty.

Oh yes. Exactly who were those vermin insurgents who by Lord North’s design were to be stripped of habeas corpus, subjected to military trials with no rights and held in the crudest and most abusive conditions? They were the Americans, and the conflict was our Revolution.

We urge you to read the article entire, but thought it germane to draw eyes to these salient points.

The Scarlet S

Why doesn't the U.S. just start branding sex offenders?

Branding wouldn't be any more medieval than the current roster of punishments. If a seventeen-year-old boy and a sixteen-year-old girl swap naked digital photos, they're both guilty of "exploiting" themselves, or each other. In Ohio, you can now be placed on a sex offender registry without ever having been convicted of a sex crime. Rapists are no more likely to be recidivists than any other criminal, but they're required to identify themselves for the rest of their lives as such. And now vigilante groups collaborate simultaneously with local police departments and national TV shows to convict accused sex offenders in the court of public opinion before they're ever brought to trial.

To sum up: if you're accused of a sex crime, you are no longer considered innocent until proven guilty. You are not entitled to be punished under a reasonable standard of law. And you are not considered rehabilitated once released back into the real world. Modern standards of jurisprudence do not apply to you, you filthy perv.

So why doesn't the U.S. brand them? The courts would be saved a great deal of trouble, as no trial or incarceration would be needed. Just hold the struggling victim down, ignoring his pleas of innocence, and apply a white-hot iron S to his forehead. And then give him an hour on the rack, just to be thorough.

What's that? Branding someone for a crime is inhumane, you say? Is it any less humane than any of the above?

Free speech means free speech for people you disagree with, or else the concept is meaningless. Similarly, due process means due process for people you loathe, or else it's not due process at all. It's injustice and cruelty.