December 16, 2009

Jake & Elwood would never break out of this Illinois prison

Obama did promise to close down Guantanamo, and damn if he isn't a man of his word. The hapless denizens of the Cuban Club Fed are moving north to the Thompson Correctional Facility in Illinois (not so far from the Blues Brothers lockup in Joliet), only about 100 miles west of the President's private residence. This major development has all the characteristics of other Obama major developments:

1. It isn't a major development at all. Of the 210 detainees in Cuba, maybe half will go north for now. This makes it look as if there is compliance with Obama's campaign promise to close Guantanamo "within one year" without actually, you know, closing Guantanamo within one year. It is that perfect Obamian compromise with the truth - halfway between doing the right thing and kowtowing to the demands of the howling Right, who believe that the very presence of a Muslim detainee on U.S. soil poses a clear and present danger to the survival of the Republic.

2. Although the transferred prisoners will reside in the American heartland, they will not see the inside of an actual American court room. Some of them will be tried before military commissions; many others will be detained indefinitely without trial, without charges and basically without hope. William Lynn of the Department of Defense has announced that the choice of forum, or the decision not to have any forum at all, is determined on the basis of the likelihood of a favorable outcome for the prosecution. Federal trials in civil court rooms are reserved for those defendants with the least chance of escaping conviction. If the case against a given prisoner is relatively weaker, then trial proceeds before a military tribunal, where the rules of evidence are relaxed in favor of the government and the tribunal itself is more likely to convict. If even this kangaroo proceeding cannot be relied upon to assure conviction, then the government plays its ace in the hole: the prisoner is just held indefinitely with no charges and no trial.

Thus, the system is set up so that the weaker the case against you, the less justice you are afforded. I think this is the Winston Smith principle of jurisprudence.

3. As a legislator and as a Democratic nominee on the campaign trail, Obama was against military tribunals altogether, and spoke out against the tyrannical practice of detention without trial. Now all of that has changed. The underlying rationale which Obama must have adopted during the last twelve months, at some point after his election was assured, is that a Muslim detainee in Guantanamo must be there for some reason, so it's logical to assume that the prisoner is guilty; that is, that a presumption of guilt exists. Whether the United States can prove it or not is somewhat beside the point, although from the viewpoint of the prisoner, I suppose, it is the point entirely. The fallacy, not often publicized (but which my membership in a legal bar compels me to point out, since I am required by the Canons of Ethics to advocate for justice even for those whom society despises), is that the right of habeas corpus, finally regained by the detainees in the Supreme Court case of Boumeddiene, has been exercised successfully by detainees in 29 out of 33 cases, or 88% of the time. The presumption of guilt which has supplanted the previous (220 year) history presuming innocence (as enshrined in the Bill of Rights), has been moved aside for purely political reasons unrelated to (a) actual danger to the United States or (b) common decency. Thus, the idea of detention without trial, in the face of such a procedural history and possibility of error, seems nothing short of tyranny.

I was watching an interview of Rep. Joe Barton (R, Tex.) yesterday as he fulminated against the grave danger of moving these awful terrorists to Illinois, where, despite the supermax conditions (from which no prisoner has ever escaped), they are likely to successully plot the total destruction of the United States. I guess that Barack Obama keeps thinking that if he splits the difference, closes Guantanamo while keeping its spirit of injustice alive, he can mollify his critics on the Right, as he has tried in so many other instances. That it never works doesn't seem to matter. But I suppose what guys like Barton have learned is that if they remain vociferous and keep complaining, even when Obama does more or less exactly what George W. Bush would have done in the same situation, that they can keep moving the President farther and farther in their direction. Until one day, in the probably not too distant future, they may have the satisfaction of thinking that things have never been so good, and that the election about a year ago, which seemed so transformative at the time, actually didn't amount to much at all.

1 comment:

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