Innocents Imprisoned

Via Spencer Ackerman, a brilliant report from Tom Lasseter about folks sent to Gitmo on terrorism charges who turn out not to be terrorists at all. Unless you're George W. Bush or John McCain, you're going to believe that even guilty men are entitled to the due process of law. But as we debate the Bush/McCain position in favor of arbitrary detention, it is worth recalling that one major reason for our procedural rights is that arbitrary and unaccountable power turns out not to be omniscient. Lots of the "terrorists" Bush and McCain want to keep in legal limbo aren't terrorists at all, but if Bush and McCain had their way, we'd never know that and folks in their situation would have no recourse.

In related news, Lasseter also has a story about systematic abuse at the Bagram detention center where "guards kicked, kneed and punched many of the men until they collapsed in pain," hung them by their wrists, etc., among other things. Maybe you think this is just terrorists getting what they deserve, but again you can consider the case of Nazar Chaman Gul who was imprisoned and tortured because "When U.S. soldiers raided the house he was visiting, acting on a tip from a tribal rival who was seeking revenge against another man, they apparently confused Gul with a militant with a similar name — who was also imprisoned at Guantanamo, according to an Afghan intelligence official and Gul's American lawyer."

Comments

For those interested in more on what happened at Bagram, the recent documentary Taxi to the Darkside is a must see.

Posted by bubba | June 16, 2008 10:13 AM

And Dilawar, who U.S troops tortured to death at Bagram, according to most interrogators "was an innocent man who simply drove his taxi past the American base at the wrong time."

Posted by Matt Weiner | June 16, 2008 10:17 AM

This is something of a minor quibble, but I don't see why it's necessarily the case that guilty people deserve due process of law. It's true that we should grant people we think are guilty due process of law to protect them in case they're innocent. It's also true that we should grant them due process if due process means not treating them in ways that are cruel or otherwise go beyond our legal sanctions for their conduct. But if due process of law means that guilty people deserve trials intrinsically, I think that's incorrect, since legal procedure is meant to determine innocence and guilt. If there were a magic 8-ball that perfectlyt sorted the guilty from the innocent, I don't see why, knowing someone's guilty, you'd still have to grant them procedural rights before punishing them. Protecting the guilty is just a necessary evil inherent in protecting the innocent.

Posted by Josh M | June 16, 2008 10:17 AM

But if due process of law means that guilty people deserve trials intrinsically, I think that's incorrect, since legal procedure is meant to determine innocence and guilt. If there were a magic 8-ball that perfectlyt sorted the guilty from the innocent, I don't see why, knowing someone's guilty, you'd still have to grant them procedural rights before punishing them.

This is silly.
First of all, if this infallible "magic 8-ball" existed, then consulting it would be due process.

And of course, the magic 8-ball doesn't exist which is why due process should be accorded to everyone no matter how sure we are of their guilt. In part because the process must not just convince "us" of their guilt, it must show that proof of said guilt was attained in an ethical manner. Threatening to kill the family of the accused, for instance, might result in a near 100% conviction rate, but it still is not a power we would want to give to the authorities.

Posted by WillieStyle | June 16, 2008 10:25 AM

Unless you're George W. Bush or John McCain, you're going to believe that even guilty men are entitled to the due process of law.

Nope. Too many Americans actually believe that once you are guilty of something you deserve what happens to you. Moreover, they believe that everyone is guilty of something so bad it'll condemn them to hell (c.f. Romans, Chapter 3). Of course "you and I are among the elect, so we don't need to worry -- but those dusky heathen ... well, they deserve whatever happens to them as they are sinners all".

America, the constitutional system, may have benefited from the natural tendancies of people to subconciously adopt the agendas of those who win the battles and pay the bills -- and hence reflects the Judeo-Islamic thinking of Haym Solomon and Kosciusko (sp?) and Pulaski (both presumably Catholic, but from a socio-economic class heavily influenced by Islam via the Lipka Tartars): rule of law and all that. But remember we do trace our heritage not to Polish Jews and Gentry (don't forget Poland!) but rather to the Puritans and Pilgrims, who may have wanted to build a "City on a Hill" (and look at how Reagan was able to mis-treat that speech, with no-one batting an eye), but who had notions of sin and redemption that hardly squared with the idea of due process of law.

To many "cultural" Americans, throwing people in jail is "doing something about the problem" (although these same Americans would find nothing constructive in impeaching the President, but that's another, albeit related, story) and there is no such thing as an innocent in jail as we all are guilty anyway. Consider, for example, our own prisons -- once the model of the world (c.f. the etymology of "penitentiary"), now ... well, we know what the "now" is ...

Posted by DAS | June 16, 2008 10:26 AM

I agree Matt's proposition "even guilty men are entitled to the due process of law" was a little confused. I suspect what he meant to be suggesting is that with some people, being personally convinced of another person's guilt can lead them to advocating bypassing due process for that person, and the contrast would be people who would not be willing to advocate bypassing due process even if they personally believed the person in question was likely guilty.

Posted by DTM | June 16, 2008 10:35 AM

If there were a magic 8-ball that perfectlyt sorted the guilty from the innocent, I don't see why, knowing someone's guilty, you'd still have to grant them procedural rights before punishing them.

You still need some due process as in, bringing them before the magic 8-ball and having them ask the question. You aren't allowed to arrest the person, throw him in jail and then refuse to let him come before the magic 8-ball.

Posted by JordanT | June 16, 2008 10:39 AM

A sad, telling commentary regarding the U.S. is we haven't seen fit to arrest and charge Bush and Cheney for various crimes. I suppose complicating any legal case against them is several hundred members of Congress, dozens in the Judiciary, hugh swaths of the military and a couple hundred million private citizens participated in their criminal conspiracy.

Posted by steve duncan | June 16, 2008 10:47 AM

If there were a magic 8-ball that perfectlyt sorted the guilty from the innocent, I don't see why, knowing someone's guilty, you'd still have to grant them procedural rights before punishing them.

And if men were angels, no government would be necessary.

But in this world, where all humans fall short of perfection, checks and balances on power are necessary.

Posted by Elvis Elvisberg | June 16, 2008 10:55 AM

Josh M, the closest thing we have to a "magic 8 ball" for sorting guilty from innocent is ... due process of law. And it isn't perfect.

Posted by mark | June 16, 2008 10:59 AM

if due process of law means that guilty people deserve trials intrinsically, I think that's incorrect, since legal procedure is meant to determine innocence and guilt.

That's not the priamry purpose of due process at all. The primary purpose is to legitimize the state's use of violence. Thus, for example, a trial of bin Laden for 9/11 is highly desireable, not because there is any doubt about his guilt, but because it presents a opportunity to convince the world that justice is being done.

Posted by rea | June 16, 2008 11:04 AM

steve duncan,

I think part of what's an issue here is that, as much as Americans lurve them some vengeance, many of us are extremely small-p (not big-P) pragmatic people: we don't like to "waste time" but rather to spend time doing things about problems.

And most people think crime is a problem, so they want to do something about it -- "lock up the criminals". And, because of our cultural heritage of belief in total depravity, we don't care whom we lock up, because "everyone is a criminal". Similarly, with terrorism -- we want someone who does something about the problem: e.g. kills, locks up or whatever "terrorists". And again, due to our cultural heritage, we don't give a whit about due process.

OTOH, in addition to attacking someone who is "doing something about the problem", locking up Bush, Cheney, et al. is not seen as constructive. Culturally, most Americans don't believe in due process and the rule of law anyway, so "what did Bush, Cheney et al do wrong except trangress silly and quaint and 'pre-9/11' notions of the rule of law?" Going after them, instead of doing all the other things that Congress is supposed to do, would be seen as "wasting time" and a "distraction for political purposes" (most Americans don't get Federalist #10, if they've even heard of it) -- and the GOP made sure that impeachment was seen this way, anyway, when they impeached Clinton.

Unless people see transgressing the idea of "rule of law" to be as dangerous to our democratic-republican body-politic (which, at some level, egged on by "even the liberal media disliking Democrats' playing politics", most people fundamentally distrust), they will not see why going after Bush, Cheney, et al., is, in any way constructive and not an "un-Christian" act of petty vengeance.

Culturally, part of why we liberals seem "out of touch","elitist" and "un-American" is that, even the Calvinists among us, have a democratic-republican mindset about the polis. OTOH, even as our constitution (both small-c and big-C) is built around this "Judeo-Islamic" way of thinking about "the rule of law", but Americans have a view of law and politics taken from a certain, distorted reading of Romans Chapter 3. So those of us who do not accept that distortion, even the Christians among us, come off as "un-Christian", "un-American" and against God, Mother and Apple Pie.

And impeaching Bush and complaining about injustice really only re-enforces that notion. The American people would forgive us for our democratic-republican ideals if we were "doing things" for them (e.g. why FDR was able to be popular) ... but until the Dem. Congress is actually able to "do something" for Americans (or at least make it obvious that it's the GOP that's holding things up), we're treading on thin ice.

If our Madisonian system worked, people would reward politicians for playing politics so long as their liberty was forwarded. But nobody rewards ambition for challenging ambition (due in part to a long GOP and media campaign against Madisonian thinking; also, c.f. Bowling Alone), so the ambitious don't challenge ambition and which politicians are brave? And since people don't care about the rule of law, why should any politician challenge GW Bush, et al., on their riding roughshod over that notion?

Our democratic-republic is broken because we have returned too much to pre-republican cultural ideals. As you point out, a couple hundred million private citizens participated in the criminal conspiracy -- but not necessarily how you mean it ... we participate at a more fundamental level by not accepting the yoke of citizenship and the notion of a democratic-republic operating under the rule of law and via the political process.

Posted by DAS | June 16, 2008 11:04 AM

McClatchy Newspapers: Bring you al Qaeda's propaganda today! Congrats to Tom Lassiter - al Qaeda's own propagandists couldn't do a better job!

Recipe for creating al Qaeda propaganda if you are McClatchy Newspapers:

1. Believe every credulous account every al Qaeda and Taliban tells you.
2. State some incredible things like "U.S. soldiers beat and abused many prisoners" and "Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases", but offer zero evidence to back up those assertions.
3. Get some disgruntled ex-Administration people like Tom White (who was fired) or the ever fabulous anonymous "U.S. Official" (probably some secretary in the Department of Health and Human Services) to confirm some of what you say.
4. Get anti-American left-wing bloggers to hype your account!

Posted by Al | June 16, 2008 11:27 AM

For the Bushies responsible for the abuses at Bagram - because this undoubtedly didn't just happen by itself - impeachment or criminal trials fall short of what's needed. They deserve trial by mob of villagers (note lowercase 'v', please) with torches and pitchforks.

Posted by low-tech cyclist | June 16, 2008 11:56 AM

Dear Al;

1) Every non-American in Afghanistan is not Al Qaeda nor the Taliban.

2) Typically, fabricated stories don't match. And you're reading a summary, not the actual interviews.

3) The disgruntled administration people apparently includes military troops with no ties to the administration. Or else you didn't read the story; you filtered it to see as little as you could.

4) Critique of flawed government action is not 'anti-America.' It is anti-corruption, pro-law and pro-human rights, all very patriotic acts.

Unfortunately, too many believe that loyalty to a political party justifies everything. There's nothing novel about that. Lots of people have taken that stance in many countries. Some willingly go to hell to prove their fealty to the worst of scoundrels, convinced of the rightness of their cause.

Fortunately for us, they don't come back to multiply their errors.

Posted by Kevin Hayden | June 16, 2008 12:14 PM

Al, no matter how much it might bother you, the truth is that McClatchy got the story correct on Iraq, and you didn't. There's no reason to think that your judgment on these matters is worth anything.

Posted by Tyro | June 16, 2008 12:20 PM

I have it on good evidence that Al is part of an Al Qaeda sleeper cell, and that any denials he makes just confirm his complicity, because that's what hardened terrorist bastards like Al are trained to say.

Now can I have my bounty?

Posted by pseudonymous in nc | June 16, 2008 1:10 PM

Don't waste your time, Tyro. Al just KNOWS that the dozens of prisoners murdered (per the U.S. military) while under our control all had it coming to them for their terrorist activities.

I guess the other 70 or so that died in captivity (but not ruled homicides by the U.S. military) were just unlucky terrorists who serendipitously got the "fate" they deserved.

"Al Akbar!"

Posted by LFC | June 16, 2008 1:12 PM

According to Newt Gingrich not having the right to simply throw people in jail forever will cost us an American city.

So, I was wrong: paranoia is a policy.

Posted by Jeffrey Davis | June 16, 2008 1:30 PM

You wrote: "Unless you're George W. Bush or John McCain, you're going to believe that even guilty men are entitled to the due process of law."

You forgot to include the Scalia bunch.

Posted by Llyonnoc | June 16, 2008 2:26 PM

Where's Iron Man? We need him to dump Al in the middle of Baghdad or Kunar Province, then fly off saying, "He's all yours!" to the gathering crowd.

Posted by Richard Steven Hack | June 16, 2008 2:58 PM