Dec 9, 2013
Taking the Justice Out of the Justice System
Posted on Aug 21, 2011
By Karen J. Greenberg, TomDispatch
Editor’s note: This article was originally published by TomDispatch.
Introduction by Tom Engelhardt
Can you even remember the world before 9/11? You know, the one where you weren’t stripped in the airport or body-wanded at the ballpark? It’s as much a lost world as anything Conan Doyle ever imagined. And it seems there’s no turning back. An administration voted into office by a populace tired of George W. Bush-ism has, remarkably enough, added on to Bush’s wars, redoubled his “secret” drone campaigns, further expanded the special operations forces that have grown into a secret military inside the military, upped the level of secrecy that envelops the National Security Complex (whose further expansion it also has overseen), renewed the Patriot Act, supported further surveillance of Americans, dumped yet more money into the Pentagon, and in sum seems intent on recreating Bushism without Bush.
Now, barely noticed, basic American institutions are starting to wobble under the strain of our post-9/11 world. With the Supreme Court ensuring that corporations would be prime actors in electoral campaigns and the coming of billion-dollar elections, national politics has become a bread-and-circuses media affair that could at best be considered a “semi-democracy.” Similarly—as Karen J. Greenberg, TomDispatch regular and author of The Least Worst Place: Guantanamo’s First One Hundred Days, tells us—the courts, already under increasing financial pressure and suffering layoffs and slowdowns, have been losing the confidence of Washington.
Osama bin Laden must be spinning with pleasure in his watery grave. Tom
Crisis of Confidence
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.
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