At the Nuremberg trials, at the end of World War II, Prosecutor Robert Jackson stated of the nazi defendants on trial:
“Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission”.
Jackson was trying genocidal, nazi monsters..real-deal bad guys, like Goering, Hess, Fritz Sauckel (Chief of Slave Labor Recruitment), Hans Frank (Governor-general of Nazi-occupied Poland, called the “Jew butcher of Krakow.”) Somehow, despite the public pressure of even our allies, America showed the world we were a nation of laws. We did not just kill the nazi defendants, although we were at war with them. We observed due process even for the worst we had encountered.
Now, compare the Nuremberg trials with the capture of Bin Laden.
The Nazis were tried, in public, with due process rights, right to counsel, and with a presumption of innocence.
Bin Laden was shot in the night, and his un-autopsied body was dumped into the sea. People in his compound, who’d been charged with no crimes, were butchered, but it seems almost impolite and unpatriotic to mention this in our corporate-owned, highly concentrated, “free press”.
Is there any reason that could explain the difference in our treatment of Nazis at Nuremberg and the assassination of Bin Laden other than the fact our government has suffered a total moral collapse?
Do we now just operate nakedly and openly as Empire, red-in-tooth-and-claw, and without pretense?
We had full control over Bin Laden, who was reportedly unarmed. We could’ve shackled him and brought him to justice, in a court, in full public view. We could’ve shown the evidence we had against him. We could’ve honored our foundational traditions and honored our system of laws by observing due process, including, as radical as it seems these days, a presumption of innocence.
Bin Laden was essentially lynched. This was not justice, whatever you think of Bin Laden. This was a lynching.
How about the Obama Justice Department’s memo on the power of the government to kill U.S. citizens? A great discussion of the DOJ’s white paper can be found in one of Glenn Greenwald’s columns. In the memo, if the President, or his underlings, determine that an American fits within certain criteria, the President can just order the U.S. citizen to be killed.
The Department of Justice, which may need to be renamed to something more relevant after Bush and Obama’s Presidencies, did allow that “due process” attached to such American citizens meeting the President’s criteria for assassination, but that due process could be satisfied by internal deliberations in the executive branch.
One more time, the due process required to kill an American citizen who has not been charged formally with any crime is satisfied per our current Justice Department if some folks in the executive branch talk about it, in complete secrecy, and agree that the American fits 3 criteria.
Accusations, then, are the same as proof.
Accusations from the same people who brought us Tuskegee and the imminent-use nuclear weapons of Saddam and Iran Contra and Cambodia/Laos and 1000 other untruths.
The point is not that our government is evil. The point is that transparency and checks & balances are critical to our Democracy.
Our congress, mostly protectors of the profitable, passed the National Defense Authorization Act (NDAA) of 2012. It allowed for the lifetime detention of American citizens, without trial of any kind, if the executive branch decided you were a member of this or that terrorist group. No proof ever needed to be shown, and the government needed not tell anyone they had taken you. They could just hold you forever.
President Obama, in a fit of civility, said that his administration would never interpret the NDAA so as to lock up an American citizen for life, without trial or formal, public charges.
But he signed the law.
Administrations change, making his assurances relevant only to the extent you believed him and he didn’t change his mind or, in any event, until the end of his term.
For some reason, most folks I spoke with didn’t really know about the NDAA. It was an odious piece of legislation that will be studied in future history classes as a classic example of imbalance between security and liberty.
In 2013, Congress added section 1029 which says the government will follow the Constitution and extend due process to citizens.
How nice of them.
Maybe next time, they will consider not authoring, voting on, and passing, in both houses, laws that are facially unconstitutional?
Chris Hedges, is a heavy-duty, award-snatchin’ journalist who worked, among other places, as the New York Times’ foreign correspondent for 15 years. He received, along with some other reporters in the group, the Pulitzer Prize for coverage on terrorism. He received the 2002 Amnesty International Global Award for Human Rights Journalism, taught at Columbia, you know…heavy hitter. He fought against the NDAA and filed suit against it. See his latest column on the suit. He’s an ardent defender of human rights and is well worth reading.
Now, in our headlines, we hear about the capture of the alleged Boston marathon bomber and naturalized citizen Dzhokhar Tsarnaev. The Justice Department decided to have a criminal trial instead of just killing him. I was almost surprised he wasn’t just shot on capture and dumped in the harbor.
How is the alleged marathon bomber so different from Awlaki/Aulaqi in Yemen? If you believe the marathon bomber is guilty, surely he is guilty of a much more heinous crime than Awlaki? They were both citizens. We killed Awlaki with a fancy robot, without charging him with anything formally…just incinerated him on the road. There has still been no real presentation of the evidence against him. Being a firebrand Islamic cleric calling for the destruction of America is protected by our Constitution and the First Amendment. Accusations of his operational involvement in crimes have been alluded to quasi-anonymously, but not presented in detail.
We left Awlaki’s corpse to be cleaned up by the locals or whomever. We even blew up some folks near him, and his 16-year-old cousin, but, again, it is impolite and unpatriotic to talk about that. We left those bodies on the road too. At least we cleaned up a little at Bin Laden’s.
Awlaki’s dad and the ACLU even tried to get the government to prosecute Awlaki vs just killing him. I am used to the fact that our government doesn’t seem to care much for the deaths of muslims, but I was surprised at the general embrace the assassination of Awlaki received by “We-the-People”, as he was at least an American muslim.
Currently, we all read about hunger strikes at Guantanamo Bay. This is the face of American justice being shown to the world…force feedings, black hoods, and a complete lack of due process. We have held those folks there, with no trials or presentations of any evidence, for 11+ years. Now they all want to die.
How can a government release prisoners they have held, without credible evidence’s being presented, for so long and so cruelly? The emperor would be completely naked.
Those prisoners would get to journalists. Questions would be asked. Light would shine in black sites. Just read the story of Canadian Engineer, Maher Arar. He was taken from Kennedy Airport, in NYC, and flown to Syria where he was tortured for 10+ months He was, of course, completely innocent. You can google him, read of his release, without apology, by the US. The Cato project has a good 9+minute video of released and tortured Guantanamo inmates.
If the US had stone-cold proof that our prisoners at Gitmo were monsters, we would’ve seen it by now.
In the run up to Iraq, when we were desperate to assemble a coalition and garner world-wide support, you still saw no real evidence or proof of weapons of mass destruction much less, their imminent use. If the government had held such evidence, they would’ve shown it. They didn’t.
Same mechanics here. If there were reams of credible evidence that the bulk of people at Gitmo were monsters that had harmed the US, we would’ve heard it. We haven’t. The cases the government cherry-picked for review have been generally slapped down.
These guys are never getting out of Gitmo. They will just sit there and die eventually unless the world says “show what evidence you have or release them.”
Process matters. The world’s largest military power needs to be a nation of laws just as the world’s most vulnerable country. Our history demands that we honor our principles of due process.
Think of how far we have fallen since Nuremberg.
The Statue of Liberty is beautiful, strong, compassionate, and welcoming to immigrants and the most humble, on the outside. On the inside, she’s completely hollow and dark.