Good for the goose
Just to warn you, I'm dipping back into the political for this post.
I posted a reply a few days ago on Pete's blog, and I would like to expand on that reply here.
Pete's post was about Jose Padilla, US citizen accused of planning to use a radiological weapon. Padilla's case has become a farce from a legal standpoint, largely because of the executive branch's misbehavior. As Pete points out, if there's any justice to be had for Padilla, one way or another, we are very likely at this point never to know what it is.
The fact that Padilla was a US citizen, who should be constitutionally entitled to protections against the sorts of things the government has done to him, ought to give every US citizen nightmares. What prevents anyone else from being next up for the same treatment?
However, that's not what I want to talk about. What I want to talk about is the US's treatment of foreign nationals.
I am going to argue in this space that foreign nationals should be subject to the same constitutional rules as are (nominally) US citizens.
I had over the years many conversations with arch-conservative Mark, but a few stick out in my mind. One, right after the 9/11 attacks, was about how we should deal with the terrorists responsible. I argued that they should be tried in an international court for crimes against humanity. Mark was aghast. "What if they're found innocent," he said. This just amazed me. Clearly, if the prosecution can't muster enough evidence to make a convincing case that these are guilty people, then they should walk. Mark was presupposing guilt, clearly, which is not a good idea. Why not? Because if you assume a person is guilty, then you overlook the possibility that they're innocent and you've made a mistake. Maybe you made a mistake identifying them. Maybe they didn't do the things you think they did.
On another instance we were talking about the Guantanamo detainees. I forget the exact context of that discussion...I was probably arguing for humane treatment...and Mark said, "They're terrorists!" The presumption there is that they're all guilty (which is almost certainly untrue), and that since they are guilty they don't deserve any humane treatment.
Though Mark certainly has an extremist political view, I've heard the same sorts of arguments come out of a lot of people, and not just conservatives.
US citizens don't...nominally...have these problems. US citizens are constitutionally entitled to speedy and fair trial, where they are presented with all the evidence against them and have a chance to rebut, and the judgement of their guilt or innocence comes from a jury of their peers. Punishment might come after they've been found guilty, but must not be "cruel and unusual."
A person might argue that the consitution doesn't apply to foreign nationals, and therefore we're not constitutionally bound to treat foreign nationals according to those rules. Which is strictly true. The question I ask is, how should we treat foreign nationals? Is it just a free-for-all, where the US government can do whatever they want, and if somebody doesn't like it, then screw 'em, it's what we're doing? Is that alright?
Why do we have those rules in place in the US constitution, to be applied to US citizens? Because the state, who is prosecuting, is scary, powerful, and potentially malicious, and clearly thinks from the start that the accused is guilty. The state therefore can't be counted on to have the best interest of the accused in mind. Further, the state may have made a mistake as to whether the accused is in fact guilty. If we don't bother to have a trial, then the state's position...presupposing guilt...is the only position, and when inevitably some of the accused are in fact innocent, a vast injustice is done. If the accused doesn't have the chance to challenge every bit of evidence brought against them by the state, then the state has the upper hand in the trial, and the trial is pointless. If the accused doesn't get their trial in a speedy fashion, then in the meantime you may have wrongly imprisoned an innocent person.
This, gentlefolk, is the case right now with regard to foreign nationals. They have been imprisoned indefinitely, without trial, while subject to "interrogation" that certainly doesn't amount to humane treatment. Some of them may be terrorists. Maybe those who are do, in some sense, deserve what they're getting. But so far as we know anything, we know that many of them are not terrorists, and certainly do not deserve the treatment shown them by the US government. "Vast injustice" hardly even begins to describe it.
How do we tell which are innocent and which guilty? The best way we know to do that is to give them a trial according to rules laid out by the US constitution.
To summarize: my position here is that there are good reasons those constitutional rules were created for US citizens; and that the reasons are equally (if not more so) valid when it comes to foreign nationals. We therefore ought to be conducting trials of terror suspects in accordance with the US constitution, regardless of whether the constitution strictly applies. To the extent that we do otherwise, we are permitting and even condoning miscarriages of justice.
We as a nation know how we ought to be behaving here. The fact that we're doing otherwise is inexusable.
I posted a reply a few days ago on Pete's blog, and I would like to expand on that reply here.
Pete's post was about Jose Padilla, US citizen accused of planning to use a radiological weapon. Padilla's case has become a farce from a legal standpoint, largely because of the executive branch's misbehavior. As Pete points out, if there's any justice to be had for Padilla, one way or another, we are very likely at this point never to know what it is.
The fact that Padilla was a US citizen, who should be constitutionally entitled to protections against the sorts of things the government has done to him, ought to give every US citizen nightmares. What prevents anyone else from being next up for the same treatment?
However, that's not what I want to talk about. What I want to talk about is the US's treatment of foreign nationals.
I am going to argue in this space that foreign nationals should be subject to the same constitutional rules as are (nominally) US citizens.
I had over the years many conversations with arch-conservative Mark, but a few stick out in my mind. One, right after the 9/11 attacks, was about how we should deal with the terrorists responsible. I argued that they should be tried in an international court for crimes against humanity. Mark was aghast. "What if they're found innocent," he said. This just amazed me. Clearly, if the prosecution can't muster enough evidence to make a convincing case that these are guilty people, then they should walk. Mark was presupposing guilt, clearly, which is not a good idea. Why not? Because if you assume a person is guilty, then you overlook the possibility that they're innocent and you've made a mistake. Maybe you made a mistake identifying them. Maybe they didn't do the things you think they did.
On another instance we were talking about the Guantanamo detainees. I forget the exact context of that discussion...I was probably arguing for humane treatment...and Mark said, "They're terrorists!" The presumption there is that they're all guilty (which is almost certainly untrue), and that since they are guilty they don't deserve any humane treatment.
Though Mark certainly has an extremist political view, I've heard the same sorts of arguments come out of a lot of people, and not just conservatives.
US citizens don't...nominally...have these problems. US citizens are constitutionally entitled to speedy and fair trial, where they are presented with all the evidence against them and have a chance to rebut, and the judgement of their guilt or innocence comes from a jury of their peers. Punishment might come after they've been found guilty, but must not be "cruel and unusual."
A person might argue that the consitution doesn't apply to foreign nationals, and therefore we're not constitutionally bound to treat foreign nationals according to those rules. Which is strictly true. The question I ask is, how should we treat foreign nationals? Is it just a free-for-all, where the US government can do whatever they want, and if somebody doesn't like it, then screw 'em, it's what we're doing? Is that alright?
Why do we have those rules in place in the US constitution, to be applied to US citizens? Because the state, who is prosecuting, is scary, powerful, and potentially malicious, and clearly thinks from the start that the accused is guilty. The state therefore can't be counted on to have the best interest of the accused in mind. Further, the state may have made a mistake as to whether the accused is in fact guilty. If we don't bother to have a trial, then the state's position...presupposing guilt...is the only position, and when inevitably some of the accused are in fact innocent, a vast injustice is done. If the accused doesn't have the chance to challenge every bit of evidence brought against them by the state, then the state has the upper hand in the trial, and the trial is pointless. If the accused doesn't get their trial in a speedy fashion, then in the meantime you may have wrongly imprisoned an innocent person.
This, gentlefolk, is the case right now with regard to foreign nationals. They have been imprisoned indefinitely, without trial, while subject to "interrogation" that certainly doesn't amount to humane treatment. Some of them may be terrorists. Maybe those who are do, in some sense, deserve what they're getting. But so far as we know anything, we know that many of them are not terrorists, and certainly do not deserve the treatment shown them by the US government. "Vast injustice" hardly even begins to describe it.
How do we tell which are innocent and which guilty? The best way we know to do that is to give them a trial according to rules laid out by the US constitution.
To summarize: my position here is that there are good reasons those constitutional rules were created for US citizens; and that the reasons are equally (if not more so) valid when it comes to foreign nationals. We therefore ought to be conducting trials of terror suspects in accordance with the US constitution, regardless of whether the constitution strictly applies. To the extent that we do otherwise, we are permitting and even condoning miscarriages of justice.
We as a nation know how we ought to be behaving here. The fact that we're doing otherwise is inexusable.
posted by Craig at 6:27 AM
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