My friend Tracy Strong wrote a note about Immigration or Why Andrew Sullivan and I agree about an emerging police state here. He emphasizes that law enforcement, particularly prosecutors, now do not care about innocence – in this way, their conduct is the opposite of the principle of our legal system: innocent until proven guilty. Instead, the police and prosecutors have often adopted a policy of; when we grab you, you are guilty. The innocent are those we have not yet come to suspect. This of course, is tyranny.
Police and prosecutorial misconduct is ordinarily a possibility: the two million jailed often for victimless “crimes” (possessing marijuana, for example) are a sign that there is something deeply wrong with our system of law even if we were to return to the rule of law. But the rule of law is a long way up from here.
“The Veloz case (and many others like it) raise a question that goes beyond the facts of racist motivated incarceration. In case after case, when it has been clearly demonstrated that the original incarceration was a mistake (e.g. Veloz is a US citizen) the authorities insist on their original position, to the point of appealing it to a court. (In the Gates case, the Boston police at least had the sense to drop the charges -- helps to be a Harvard Professor. Note by the way that the woman who called in the original 911 report was careful -- very careful -- not to make accusations, even going to the point of saying that those she observed might live there. She strikes me as having acted blamelessly). That such appeals and refusals to drop cases in spite of clear evidence of "mistakes" happens with considerable frequency tends to make one believe that there is some kind of tacit policy at work -- as if losing or backing down would undermine the whole process (and -- heaven forfend -- recognize the ground of the rule of law).
Tracy also corrects an error in my post: Imagine that you are Henry Louis Gates here. I thought the bystander was a neighbor who identified the two men on the porch, with the suitcases, as black. She did not. That is solely in the police report filed by officer Crowley.
If one wants to see the effect of the Bush era on authoritarianism throughout the legal system, stemming from the massive racism against latinos and Arabs, one should note that last week federal judges said that there is insufficient evidence to justify the detention of two prisoners at Guantanamo, including Mohammed Jawad arrested when he was as young as 12 (no American knows). Some American soldiers were wounded by a grenade. No one saw who did it. Jawad had been working for the Americans near the site. He had been tortured. His life was threatened as well as those of his family. Shortly before, Mr. Dilawar, the 22 year old taxi driver, had been kicked in the legs 150 times by American soldiers, until they were destroyed; the next day, he had a heart attack and died. They murdered him for the crime of driving his cab. One other soldier had been murdered by the guards. Word of this was in the prison. Jawad confessed. There is no evidence of guilt, except torture and the threat of murder. The U.S. government invaded Afghanistan not speaking the language and placed its trust in mass murderers like General Dostum. Is it amazing that those who could speak the language – the very divided Afghanis - fingered people, often for pay, whom the Bush administration duly seized and tortured, who had nothing to do with Al-Qaida or the Taliban? Just people they disliked or could get money for. As Dahlia Lithwick points out, there is now an 85% success rate for lawyers who get Guantanamo clients finally into court (28 out of 33 cases have resulted in release). Friday Glenn Greenwald noted that "If the 85% success rate for Gtmo detainees holds up, that would mean govt lacks evidence to support holding about 195 of 229 detainees left.” But these prisoners are supposedly the “worst of the worst.” This is what happens when a country substitutes the madness of a cruel leader – a tyrant Cheney - for the rule of law. But why is the Obama administration, following Bush, clinging to these prisoners at all costs? Saying it might introduce further charges against Jawad? Refusing the Afghanistan’s government’s – its client’s – plane to convey Jawad back to Afghanistan? Why does the Congress, led by the Democrats, fear to allow any of the Guantanamo prisoners into maximum security prisons near the constituents to await hearings (and likely release)? What does it say about our government, the Bush-Cheney tyranny that did this and the many Democrats joined at the hip with tyranny?
Today Greenwald adds one other insight into what this means. Suppose – which is rather unlikely since the case was thrown out by an American court – that the charge was true. The US invaded Afgrhanistan. Jawad would have been resisting the invading forces. No one has claimed that he was part of Al-Qaida or the Taliban. Under the laws of war, Greenwald notes, Jawad was right to resist. More deeply, remember the American Revolution. The Crown did not deport prisoners, let alone early teenagers, to Goa or Jamaica to torture them or hold them in secret prisons there for years. What the Bush administration has done defies all notions of law or decency. Jawad resisted the army of an invader, that is, an aggressor. A teenager acted innocently under the authority of Article 2, Section 4 of the United Nations Charter, negotiated by the Roosevelt administration by later Supreme Court Justice Robert L. Jackson. Perhaps someone can name for me a greater considered betrayal of what America stood for – American values as Obama eloquently put it – in modern times (one candidate is the My Lai massacre but that was the act of Lieutenant Calley and some of his men - it was resisted by some - enabled by the policy of murdering civilians to get the guerillas of the Johnson administration, but not sanctioned, in bipartisan fashion, by the executive over many years).
Jack Balkin, who teaches constitutional lawyer at Yale, has spoken of a new regime, now being confirmed by the Democrats: the national security state. He leaves out a decisive mechanism, however. Two party competition in an oligarchical democracy is always, without a mass movement from below, a dance to the Right. Democrats who are baited as “soft” on security have been easy targets in Presidential elections for many years. The fear that someone from Guantanamo might be freed and strike at the United States silences even Obama, who had said eloquently we need not sacrifice our values to achieve security. Such actions betray these noble words. Osama Bin Laden could not destroy the bill of rights and the rule of law. Bush and, sadly, Obama catering to Bush to prevent war crimes trials, can.
The new police state locks away the innocent. When they are revealed to be innocent, the state, even under the Democrats, tries to fight it. What happened in the application of the rule of law to the notion of innocent until proven guilty, with the American Hector Veloz? The same thing that happens at Guantanamo, The same thing that happens to illegals. The same thing that happens to poor whites. The same thing that happens to followers of Martin Luther King, who dissent from American aggression and torture. As Pastor Martin Niemoller reminds us about those who do nothing, “then they came for me and there was no one left to protest.” The rule of law is a common good. It protects us all. When we allow innocents to go to jail, when they are even recognized by a court as innocent and yet the regime tries to make a further case to keep them in jail or simply “indefinitely detains them,” the authorities charged with upholding the law betray such a good. What is betrayed for one is betrayed for all.