Incentives

by digby

I've long worried about the gradual open acceptance of torture and have written a lot about the expanding police apparatus and what that means to our civil liberties. ("If you build it, they will use it.")

In a post questioning the usefulness of creating yest another alternate legal system to deal with the Guantanamo prisoners, Hilzoy puts her finger exactly on why it is a very dangerous idea, and cites what I consider to be a chilling example of how it's likely to be abused:

One of the ways in which we protect ourselves from torture is by making it clear that evidence gained through torture is inadmissible in court. Creating an alternative legal system in which such evidence was admissible would create horrible incentives for law enforcement. This is particularly true since many terrorism statutes are broadly written. Consider this case:

"For the past three years, a 24-year-old construction worker named Edgar Morales has been in jail, awaiting trial on murder and terrorism charges that could send him to prison for life. Mr. Morales, however, does not belong to Al Qaeda or Hamas.

Instead, prosecutors say, he is a member of the St. James Boys, a group of recreational soccer players who formed a street gang that terrorized the Mexican and Mexican-American population of the west Bronx for several years and killed a 10-year-old girl in 2002. (...)

The Bronx district attorney, Robert T. Johnson, says the law is an apt tool in his effort to prosecute violent street gangs.

"The obvious need of this statute is to protect society against acts of political terror," Mr. Johnson said in a statement. "However, the terror perpetrated by gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute.""

This case concerns a state statute, but the relevant part of it -- defining terrorism as acts that violate the law and are intended to "intimidate or coerce a civilian population" -- is also found in federal law. This means that a lot could count as terrorism in the hands of a creative prosecutor, and if, in all such cases, an alternate legal system was available in which evidence gained through torture was admissible, that would have huge implications.

Of course Obama would say that the new justice system could only be used in the "right" kind of terrorist trials. And he would probably make sure that they were. But down the road, suppose we have a crime wave or there becomes some kind of extreme dissent on an issue or someone like David Koresh gets the attention of the authorities and you have these "terrorist" laws on the books and a special justice system all ready to deal with them? After what we've seen (and the clear lesson that there will never be any ramifications for such behavior) why would anyone think that the government wouldn't use them? They already are. ("Terrorism" is a very elastic term and one that is wide open for abuse in a nation where sadistic sheriffs are so celebrated that they are given their own reality TV shows.)

We have a civilian legal system and a military legal system under our constitution, both of which have been developed over centuries and tested from a myriad different directions. And as sophisticated as they are, they are still imperfect and often produce unjust results. It's impossible to develop yet another legal system from scratch that will even function much less have any credibility. We've seen that with the military commissions that are nothing more than staged Kangaroo courts where even the judges don't have a fundamental understanding of how the thing works. It's just not possible.

This isn't as complicated as they say, but it will require some effort:

This report released by the Center for Constitutional Rights includes the newest and most comprehensive numbers and lists of detainee status by nationality. The three simple steps are: 1) send those can go home home, 2) secure safe haven for those who cannot, and 3) charge those who can be charged and try them in ordinary federal criminal court.

It has been often repeated that closing Guantánamo will be a challenge. The reality is that the restoration of the rule of law to that offshore prison—and this country—should be significantly less complicated than the dismantling of the law has been. The time to close Guantánamo is long overdue—and it can be done in three months.

The new administration must repatriate those who can be released safely, secure safe haven in the United States and other countries for those who cannot be repatriated safely, and prosecute in federal criminal courts those who should be prosecuted. Only 250 of 779 men remain in the prison camp. Most can be returned to their home countries through vigorous diplomacy. A smaller number need to be offered protection in the United States or third countries, many of whom have already begun to come forward to offer help to the new administration. There is no justification for continued detention without trial or the creation of special courts; such proposals would continue the human rights disaster rather than end it.

For more information on CCR's 100 Days campaign to restore, protect and expand the constitution, click here.

And in the spirit of being supportive when it's warranted, the ACLU has a nice action going to show your appreciation to President-elect Obama for pledging yesterday to issue an executive order to close Guantanamo on his first day. You can sign the letter, here.

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