We’re Better Than This

Ken AshfordWar on Terrorism/TortureLeave a Comment

A nation of laws?

The Pentagon set rules Thursday for detainee trials that could allow terror suspects to be convicted and perhaps executed using hearsay testimony and coerced statements, setting up a new clash between President Bush and Congress.

The rules are fair, said the Pentagon, which released them in a manual for the expected trials.

The rules are not fair.  If they were, then hearsay and coerced statements would be allowed in all our trials.

Let me paint a picture.

Suppose the police picked you up because they thought you might know something about the a crime which had taken place, or was about to take place.  In my scenario, the police are allowed to beat you.  So they do.  They beat you and torture you.  You say (in all honesty) that you know nothing about the crime.  So they beat and torture you more — and harder.  You still claimsto know nothing.  So the beatings and torture get even harder, and you are brought to the brink of death.  Furthermore, you know that nothing bars the police from killing you, since there will be no retribution for that.

Now, if you’re that guy, and you want to, you know, live — what are you going to do at that point to get them to stop?  You’re going to give them a name.  Any name.  Anything just to make them stop torturing you.

Now imagine your the person who was named.  And based on the coerced "confession" of the suspect, you are now facing trial.  Do you think it is "fair" for that evidence to be used to convict you, and to (possibly) execute you?

It comes down to this: If you have to rely on hearsay and coerced evidence in order to get a conviction, then perhaps you really don’t have a case after all.  And there’s not a lawyer or law enforcement official who disagrees with that.

Speaking of bizarre anti-American twists of law, what Carpetbagger says:

I haven’t seen independent confirmation of this, so consider it an unofficial transcript, but Attorney General Alberto Gonzales was asked yesterday about the constitutional right of habeas corpus during a Senate Judiciary Committee hearing. If accurate, his reported response was one for the ages.

Specter: Now wait a minute, wait a minute. The Constitution says you can’t take it away except in the case of invasion or rebellion. Doesn’t that mean you have the right of habeas corpus?

Gonzales: I meant by that comment that the Constitution doesn’t say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn’t say that. It simply says that the right of habeas corpus shall not be suspended.

According to one reporter, Specter responded, “You may be treading on your interdiction of violating common sense.”

That’s an exceedingly polite way of telling Gonzales that his interpretation of the Constitution borders on lunacy. Americans don’t necessarily have the right of habeas corpus, Gonzales reportedly argued, because the Constitution merely insists that the right not be “suspended.”

I’ve spent far too much time trying to wrap my head around such an intentionally obtuse argument, and I’ve given up. It’s akin to arguing that Americans don’t necessarily have the right to free speech; the Constitution merely prevents laws that would prohibit free speech.

Mr. Gonzales, Harvard Law School called. They want their diploma back.