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Taking the Justice Out of the Justice System

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Posted on Aug 21, 2011
Paul Keller (CC-BY)

By Karen J. Greenberg, TomDispatch

(Page 2)

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.”

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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.


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By Real Law, January 23, 2012 at 3:45 pm Link to this comment
(Unregistered commenter)

Concerning the American justice system and the police, I am sure that; The American justice system and the police are your enemy and are not to be trusted under any circumstance whatsoever must be taught in schools, and especially to every African American child.

A portion of what is happening is a movement creating

1. Alternatives to American law schools, taught only by individuals who have had to learn to do real law for themselves and have won.  Those who have had to do real law for themselves and should have won but did not.  Reading the information compiled in these pages, you will see it is not a chance worth taking to have to learn from the vast majority of individuals who are teachers in law schools, and those who have graduated from law schools and are practicing members of the American justice system. 

2. A system of information; one that gives to every African American and to anyone who wants, readily accessible information about every police officer in this country, every lawyer, attorney, judge, all elected officials.  A system just like the one the police use to look up all information on you.  With all the technology we have today, that can and must be done, especially in African American communities.  It is simply a matter of survival.

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By JMD, August 24, 2011 at 5:26 pm Link to this comment

Karen J. Greenburg:              8/24/2011            
      I find your posit very
interesting,informative and an astute observation
from a legal standpoint.
      Is it because,we as citizens do not remain
vigilante to what our politicians do,to us,that we
are where are today?To remain vigilante = do not
trust? The psychologists would have a field day with
that now,wouldn’t they? We can’t win for loosing.
Tom Engelhardt:
      I do remember the world before 9/11 and I
would be interested in asking all those who died
fighting in previous wars for this Country,“What was
it that they thought they were fighting and dying
for”? 
      Thanking you both for my comment to you -
      James M. de Laurier

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Lee Oates's avatar

By Lee Oates, August 24, 2011 at 9:20 am Link to this comment

Osama didn’t destroy America, the right-wing nuts and the unregulated, out of control corporations and corrupt handpicked judges, have destroyed America. They took advanage of Osama’s attack on the twin towers to create fear in America and to litterly take over the government, the military, and what is rapidly becoming America’s secret police policies, under the infamous Patriot Act.  The Republicans simply brought the country to a halt by voting no on every improvement Obama tried to make.

As a direct result, Americans have no decent medical care, a shrinking middle-class, high unemployment, losing their homes and pensions, and environmental degradation. Wealth is being transfered to the small rich elite and poverty is rapidly increasing.

Our prisons have become a booming industry, and we have the largest percentage of jailed citizens in the world.  Our personal freedoms and our right to express our opinions are under attack.  Torture and jailing without trial have become acceptable if not normal practices. And lastly we have invaded two countries, and are going broke because of it.  America is not the country it was when I was young in the 1940’s. 

Like I said earlier, Osama did not destroy America, we did by electing all the wing-nuts into office and allowing corporations to gain control of the country.

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Lee Oates's avatar

By Lee Oates, August 24, 2011 at 9:13 am Link to this comment

Osama didn’t destroy America, the right-wing nuts and the unregulated, out of control corporations and corrupt handpicked judges, have destroyed America. They took advanage of Osama’s attack on the twin towers to creat fear in America and to litterly take over the government, the military, and what is rapidly becoming America’s secret police policies, under the infamous Patriot Act.  The Republicans simply brought the country to a halt by voting no on every improvement Obama tried to make.

As a direct result, Americans have no decent medical care, a shrinking middle-class, high unemployment, losing their homes and pensions, and environmental degradation. Wealth is being transfered to the small rich elite and poverty is rapidly increasing.

Our prisons have become a booming industry, and we have the largest percentage of jailed citizens in the world.  Our personal freedoms and our right to express our opinions are under attack.  Torture and jailing without trial have become acceptable if not normal practices. And lastly we have invaded two countries, and are going broke because of it.  America is not the country it was when I was young in the 1940’s. 

Like I said earlier, Osama did not destroy America, we did by electing all the wing-nuts into office and allowing corporations to gain control of the country.

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By diamond, August 23, 2011 at 1:30 pm Link to this comment

“OK, tell me again why I should support Obama in ‘12. Oh, yeah, ‘cause we may get somebody in there that’s worse! What a pathetic, sick joke!”

Maybe so, but I can assure you that nobody will be laughing, including you, if the Republicans get anywhere near the White House in 2012. The horror they would unleash is almost beyond imagining.

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By SarcastiCanuck, August 23, 2011 at 11:16 am Link to this comment
(Unregistered commenter)

Yes America,you don’t need any enemies,you seem to slowly be killing yourself.You used to be the coolest dudes on the planet.What happened???

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By berniem, August 22, 2011 at 3:39 pm Link to this comment

OK, tell me again why I should support Obama in ‘12. Oh, yeah, ‘cause we may get somebody in there that’s worse! What a pathetic, sick joke!

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By felicity, August 22, 2011 at 10:01 am Link to this comment

ocjim - You left out clueless. The ‘professional’
terrorist (Osama etc.) launches an attack on an
‘enemy,’ waits for ‘retaliation,’ the bigger, the
better makes him a major player on the world stage. 
His new renown, of course, insures a huge increase in
the number of minions world-wide, ready and willing
to hop on his bandwagon.  Revenge, Retaliation,
Renown - the formula for successful terrorism.

The US answered the ‘call’ in spades - two wars, the
creation of a home-grown police state, and of course
the torture of (suspected) political prisoners (the
practice of which we once advocated should send Nazi
war criminals to their deaths.)

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By Jim Yell, August 22, 2011 at 8:50 am Link to this comment
(Unregistered commenter)

Well there are a lot of words here. Won’t mean much as long as people accept that they may control each others lives based upon their sole advantage.

I can tell you right now that justice doesn’t mean anything in this country. Being innocent means nothing. If you don’t have money or the ability to create crushing debt for yourself you can not defend yourself or your loved ones once they have been accused and arrested.

It is the same with Healthcare. There are no restrictions on the gouging that insurance and providers can get away with. We have a substantial collapse in income for most Americans and yet the premiums remain so high that a modest income can not even pay for regular check ups out of pocket. We have at lest for the moment government programs that provide some subsidy to payment, but in fact the price rises so that even with a subsidy the adjusted rate is high for most with incomes and beyond reach or really low income people.

When the Republicans or Democratic enablers attack the working poor they throw out the huge average income of Americans, which is disengenuous, as it includes the really huge incomes of a fraction of the population and they are so large that they cause the supposed center to be raised way above what the actual average person earns. Then they say why can’t they deal with it themselves?

Once I took a job that was barely above minimum wage and found myself working just as hard as ever, but without the money necessary to maintain transportation to work. I had no time payments and yet by the time I bought food, paid for basic car expense and utilities I had all of $50 to consider sort of descretionary spending. When my friend who made $150,000 heard me complain about my car repair and the number of repairs I needed beyond that which cost would be some hundreds of dollars and the immediate repair would cost $50 he wanted to know why I was complaining and didn’t just spend the $50. He was much in line with the tea party crazies and the glutinous super rich, who can’t understand why working people are mad. This whole mess was engineered by investment bankers and loan sharks who are now allowed to parade our streets as if they were just good business people. Much talk of returning to Relgion, but who is talking about reducing interest to the 3% reccomended by the Bible? Who is recognizing there is such a thing as usuary, which has become the legal actions of legal robbery?

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By Tobysgirl, August 22, 2011 at 5:26 am Link to this comment

The U.S.‘s goal seems to be to create as many terrorists as possible. But, if you stop to think about it, this is in the ruling class’s interests. Keep the populace scared and focused on bogeymen while you reduce them to scrounging for housing and food. And thinking that it’s a good thing for the wealthy to pay no taxes!

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By diamond, August 22, 2011 at 3:23 am Link to this comment

The American ‘justice’ system has always been a disgrace. The 14th amendment was passed to protect black slaves after the Supreme Court ruled that a runaway slave could not sue for his freedom because he was not a person but ‘property’. It didn’t help: the corporations and the Supreme Court then simply colluded to make an amendment that was meant to protect black Americans into something that protected corporations. This is why corporations are now classed as persons, because the corporations and the Supreme Court were able eventually to pervert the entire intention of the 14th amendment to give to corporations all the protections that were meant to protect black Americans and ensure that their birth in America made them citizens. Not content with making corporations people the lunatic right in America now wants also to claim that the 14th amendment which makes corporations people does not make Barack Obama an American citizen. There’s a long history of collusion between the Supreme Court and crooks and corporations. So much so that a banker proposed a toast to the Supreme Court in the thirties in which he called the Supreme Court the ‘protector of private property’. Which is precisely what it is. To its shame. Given this history the justice system is easily corruptible being firmly in bed with capital and capital’s wars, including the so-called War On Terror.

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joentokyo's avatar

By joentokyo, August 22, 2011 at 1:11 am Link to this comment

“Now that he’s dead we can say anything we like about him and not have to prove it.”

For example, we can say that he wasn’t already dead before our heroic mission to kill him.

His burial at sea means no one can prove it wasn’t him, or even if it was anybody.

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By Marian Griffith, August 21, 2011 at 11:54 pm Link to this comment
(Unregistered commenter)

@prisnersdilemma
—-This while literally millions come
into this country illegally. All of them seem to have no problem getting fake identification.
In addition millions of tons of drugs seem to have no problem making it across the
border each year.—-
It is a big border and most of it is not exactly densely populated. Not to mention a population that has let itself be deluded that it does not have to pay taxes and still receive the benefits of a strong government. And of course despite popular outcry, much of the country’s manufacturing and production (not to mention menial jobs like cleaning) relies or the near slave labour that is provided by these illegal immigrants. Of course there is an entire industry providing them with fake identification (this is capitalism after all, anything that can provide a quick profit will be employed beyond its braking point and never mind things like humanity or legality).

—-Yet, meanwhile this country has a greater percentage of people behind bars than any
other country.—-
That is because there is no longer a penal system but a prison industry. With too few people caring how prisoners are treated and government paying as if they are treated decently (and a populace tho does not care how others are treated as long as it can convince itself they are ‘other’) there is a lot of money to be made out of locking up people for as long as you can convince a judge and jury to do so. Plus, you get to use them for free forced labour, which you can contract out far from free to local municipalities.

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By Marian Griffith, August 21, 2011 at 11:41 pm Link to this comment
(Unregistered commenter)

I have only one thing to add to this:
What makes ms Greenberg think that the politicians are still in charge of this country?
Representatives are elected on their ability to look good and deliver sound bites that others write for them, and for their ability to raise millions and hire the best spin doctors. Nowhere does being competent at, you know, governing enter the picture.
So we end up with a political class that is essentially a bunch of stand up comedians and that rely entirely on external advisors, who they appoint on the ‘independent advise’ of those who donated millions to their campaigns.
The French at least recognised this years ago and came within a hair of electing president a candidate who outright admitted to be a professional joker.

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Misfiteye's avatar

By Misfiteye, August 21, 2011 at 8:18 pm Link to this comment

When one uses a crisis like a “New Pearl Harbor” to achieve long term goals, there is no incentive to resolve that crisis expeditiously.

We had to kill Osama.  He was too sick to be an effective bogeyman, we couldn’t bring him to trial, even the FBI said there was no physical evidence to link him to 9/11, and well it just wouldn’t look good to let him die of old age.

Now that he’s dead we can say anything we like about him and not have to prove it.

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prisnersdilema's avatar

By prisnersdilema, August 21, 2011 at 7:42 pm Link to this comment

Not really, it’s never been more clear….

Corporate crooks are above the law, the banks, big agri business, big Pharma, big
insurance companies, big oil….

They can lie cheat and steal,  murder children in their sleep from cancer, force millins
onto the street, bankrupt this entire country, and nothing happens. No justice
department investigation, no FBI investigation, no nothing.

But your searched down to the lint in your socks, every time you board a plane. Your
electronic footprint can be searched without a warrant. This while literally millions come
into this country illegally. All of them seem to have no problem getting fake identification.

In addition millions of tons of drugs seem to have no problem making it across the
border each year.


Yet, meanwhile this country has a greater percentage of people behind bars than any
other country.

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By ocjim, August 21, 2011 at 5:56 pm Link to this comment

It seems as though the Bush administration and the Obama administration studied all the possible responses to the 9/11 attack and came up with the most stupid, the costliest, and the most disruptive to American life and freedom of responses possible. Obama seems to have even heightened and re-determined the implementation of anti-terrorists activities to utilize the latest technology and spend the most money during the post-Bush era as well.

Obama now rules politically like Bush never smartly, except for eliminating bin Laden.

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By Sean Cunningham, August 21, 2011 at 4:46 pm Link to this comment
(Unregistered commenter)

Unexpected damage? I hate to tell ya, but the damage America does to itself may be unexpected only by Americans.

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