If you listened to this administration you would think there are only two possibilities on how to deal with suspected terrorists or foreign fighters – you either try them in tribunals where they have almost no rights or you let them go. Well, that’s how a third grader might see the world, but in the real world – and what used to be the real America – we do something else. It’s called fair trials that bring people to justice.
Remember the idea of bringing people to justice? Whatever happened to the “justice” part of that phrase? In the old America, the one I remember from my youth (I was 30 when this administration came in, so I can still call that youth), we used to believe in rights for defendants, we used to believe in international law, we used to believe in checks and balances, we used to believe in innocent until proven guilty, we used to believe in open trials … and we used to believe that we were just.
Now, according to the argument this administration made in Hamdan v. Rumsfeld, international law doesn’t apply to us anymore. If the President doesn’t like it, then he doesn’t have to follow it. I used to remember a day when we were a country of laws, not of men. I remember a day when we didn’t think we were above the law. I remember a day when the Republican Party advocated for “the rule of law.”
The government also argued in Hamdan that the defendant’s presumption of innocence can be taken away from him. That he does not have the right to confront the witnesses against him or to avoid self incrimination or to even appear at his trial.
I’m not saying that foreign nationals should have all of the rights guaranteed to US citizens (at least the rights they were guaranteed until Jose Padilla and Yaser Hamdi were arrested as “enemy combatants” and stripped of all of their rights as US citizens). But we used to have an established method for trying prisoners of war; it was called the Geneva Conventions. And as an international treaty we signed, it was the law of the land. Until the Bush administration decided they could choose to ignore the law.
It’s sad enough that the administration had the nerve to make this argument, what is even sadder is that they won the Hamdan case. Who do we have to thank for this? Why, of course, John Roberts.
If you feel like you’ve heard that name before, it’s because you have. He is the man who was coincidentally picked to be the Bush administration’s new nominee for the Supreme Court. This decision came just one week after Robert’s decision in the Hamdan case. Payback is a bitch, for the rest of us.
As Emily Bazelon points out in her excellent analysis of this case in Slate, the Hamdan decision doesn’t just apply to foreigners, it can also apply to US citizens. So, if you think show trials are fun for foreign nationals, wait till you get a load of them in your backyard.
If you don’t think it can happen to an American citizen like you, just have a chat with Jose Padilla. Oh wait, you can’t talk to him – he’s a US citizen being held on secret charges. He has been deemed an enemy combatant by executive fiat and stripped of all of his rights. When did this become acceptable? When did this become American?
This administration seems bothered by the American justice system. It would rather not give people the rights that the Constitution guarantees them. The Constitution – what a hassle! And these guys claim to be strict constructionists of the U.S. constitution?
Strictly construct this:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Giving people rights isn’t the same as releasing them. Giving people rights isn’t the same as being softies. It’s what we used to believe was the American way. Have we given up on that school of thought? Have we given up on the American justice system?
If we have, we should have an open debate about it. Maybe we can pass a couple of amendments to the Constitution that officially get rid of at least the fifth, sixth and eighth amendments in the Bill of Rights. Instead, we have President Bush changing the system all by himself and John Roberts allowing him to do it under the ironic cloak of strictly interpreting the Constitution.
These people don’t love America, they don’t love our system – they hate it. It bothers them. The provision in the Patriot Act that gets rid of the need for judicial warrants (and replaces them with the Orwellian “administrative warrants,” where the FBI gives itself warrants) gets rid of the fourth amendment. The Hamdan decision that Roberts signed on to gets rid of the need for the fifth and sixth amendments. The torture and abuse committed in Abu Ghraib, Guantanamo Bay, Bagram Air Base and dozens of other U.S. run prisons gets rid of the eighth amendment.
This is a constitutional coup. We’re letting them kill the idea of America in the middle of the night. The American justice system is under attack, and ironically, the people attacking it claim to be patriots. But they are not. They hate the American justice system. And accordingly, they hate the idea of America.
Isn’t it fair to ask for a Supreme Court justice who actually believes in the American system of justice?