In his recent speech on the treatment of foreigners detained for terrorism, Barack Obama made the following shocking statement:
We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country, but even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes but who nonetheless pose a threat to the security of the United States. . . . I am not going to release individuals who endanger the American people.
This is shocking because it comes from a scholar of Constitutional law.
Based on the principles of the United States justice system, guilty people walk out of courtrooms after trial as free men and women every day. Then there are those who serve their sentences but whom we know are probably going to go out and harm Americans or America again yet must be released. Some constitute the very worst of society: pedophiles, rapists, wife beaters--all crimes that have a high rate of recidivism. Then there are those who are never brought to trial because the statute of limitations has run out.
Why do we throw up our hands and say, "Oh well," and let these people go? Why don't we throw them in jail anyway and say "Well, we are pretty sure you are guilty and you are going to hurt people so we're locking you up until we think you will not do that."
If we operated on that principle, what would be the point of having a judicial system? Is Obama suggesting that we only hold trials for those detainees we feel confident that we can convict? Or those we know are not really dangerous, so we are comfortable with the notion that they may be acquitted?
The "flaws" in our justice system that allow guilty or would-be guilty people to go free--the built-in provisions that force the system to "error" on the side of caution--were put in place to minimize the likelihood of innocent people being wrongly convicted.
Unproven scientific methods (ie, lie detector tests), hearsay, coerced confessions, and evidence seized without a warrant are generally not allowed to be used against a suspect because it is too easy for the powerful to misuse against the powerless. Evidence can be manipulated, testimony can be molded (which is why we have cross-examination), all in an effort to railroad someone who is innocent.
The notion that the cases against some suspected terrorists could not survive the rigorousness of a fair and legal prosecution and therefore should never be tried mocks the very Constitution that Obama used as his backdrop.
One might argue, as the Bush administration did, that the Constitution applies only to Americans; that under the doctrine of American Exceptionalism, Americans are somehow a special class of people who deserve these inalienable rights. Our founding fathers would disagree.
In the "Rights of Man," Thomas Paine says "Rights are inherently in all the inhabitants." He was a fervent believer in natural rights that cannot be granted by any government--only limited or rescinded. Paine's writings trickled into our Declaration of Independence and the Constitution.
Like Paine, Thomas Jefferson was a strong believer in the natural rights of man:
A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.
What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.
Nothing... is unchangeable but the inherent and unalienable rights of man.
As a Constitutional scholar, President Obama is no doubt familiar with the views held by our founding fathers. He knows he alone is electing to violate the rights of those he would hold without trial.
When the French issued the "Declarations of the Rights of Man and the Citizen" (inspired by Paine), they noted that rights were universal--independent of the governing body. The whole purpose of government, per this declaration, was to prevent others from infringing on these rights and to keep people from infringing on the rights of others in pursuit of their own rights.
If an American has the right to be presumed innocent until adjudicated guilty by his or her peers, then so does an Afghanistan citizen or an Iranian or a Saudia Arabian. You either believe these principles or you do not. Of course, as even our founding fathers and their successors demonstrated through the embrace of slavery, the marginalization of women, and the persecution of Native Americans, it is easy to talk the talk and much harder to walk the walk.
I would like to see Obama's actions reflect the value of his words. Either the Constitution is a venerable document that should be applicable to every one of the world's inhabitants, including people suspected of terrorism, or it is merely cubic zirconia, sparkling in the light but unable to hold its lustre under a microscope.
Obama is, like Bush and Cheney, allowing fear--whether it is personal or political--to override his judgment. We entrusted Jeffrey Dahmer's case to our court system, and this was a man who had human brains in his refrigerator and vats of remains in his apartment. Our evidence against many of these "terrorists" is nothing more than an accumulation of suspicion and forced confessions and hearsay. If we have real evidence, we should use it in court. If we do not, then we have no right to hold any of these people indefinitely because we can have no confidence in their guilt.
Obama would do well to take heed from something else Thomas Paine wrote, about William Pitt, the Younger, a powerful prime minister in England who came to power at the age of 24:
Mr. Pitt was, at that time, what may be called a maiden character in politics. So far from being hackneyed, he appeared not to be initiated into the first mysteries of court intrigue. Everything was in his favour. Resentment against the coalition served as friendship to him, and his ignorance of vice was credited for virtue. With the return of peace, commerce and prosperity would rise of itself; yet even this increase was thrown to his account.
When he came to the helm, the storm was over, and he had nothing to interrupt his course. It required even ingenuity to be wrong, and he succeeded. A little time showed him the same sort of man as his predecessors had been...
It is unpleasant to see character throw itself away. It is more so to see one's-self deceived. Mr. Pitt had merited nothing, but he promised much. He gave symptoms of a mind superior to the meanness and corruption of courts. His apparent candour encouraged expectations; and the public confidence, stunned, wearied, and confounded by a chaos of parties, revived and attached itself to him. But mistaking, as he has done, the disgust of the nation against the coalition, for merit in himself, he has rushed into measures which a man less supported would not have presumed to act.
All this seems to show that change of ministers amounts to nothing. One goes out, another comes in, and still the same measures, vices, and extravagance are pursued. It signifies not who is minister. The defect lies in the system. The foundation and the superstructure of the government is bad. Prop it as you please, it continually sinks into court government, and ever will.