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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, December 30, 2006

The President's praise of fair trials and the rule of law

(updated below - Update II)

By Glenn Greenwald - President Bush today hailed the critical importance of fair trials and the rule of law . . . . in Iraq:

Today, Saddam Hussein was executed after receiving a fair trial -- the kind of justice he denied the victims of his brutal regime.

Fair trials were unimaginable under Saddam Hussein's tyrannical rule. It is a testament to the Iraqi people's resolve to move forward after decades of oppression that, despite his terrible crimes against his own people, Saddam Hussein received a fair trial. This would not have been possible without the Iraqi people's determination to create a society governed by the rule of law.

The President is certainly right that it is is a good thing that Saddam Hussein was given a trial, represented by lawyers, with an opportunity to contest his guilt, before being deemed to be guilty. That is how civilized countries function, by definition. In fact, allowing people fair trials before treating them as Guilty is one of the handful of defining attributes -- one could even say (as the American Founders did) a prerequisite -- for countries to avoid tyranny.

That is why it is so reprehensible and inexpressibly tragic that the Bush administration continues to claim -- and aggressively exercise -- the power to imprison and punish people without even a pretense or fraction of the due process that Saddam Hussein enjoyed. The Bush administration believes that it has the power to imprison whomever it wants, for as long as it wants, without even giving them access to the outside world, let alone "a fair trial." The power which it claims -- which it has seized -- extends not only to foreign nationals but legal residents and even its own citizens.

George Bush ordered U.S. citizen Jose Padilla abducted and shoved into a black hole for almost four years, all the while torturing him and refusing him any contact with the outside world, let alone any due process. He did the same to U.S. citizen Yaser Hamdi and legal resident Ali Saleh Kahlah al-Marri. In all of those cases, he claimed -- and still claims -- the power to hold them in that manner forever, and claims they are not entitled to any process of any kind.

The President -- the American President -- has also ordered foreign nationals abducted both inside the U.S. and from other countries, including our own allies, and sent to Syria and Egypt with the knowledge, with the intent, that they be tortured. None were given any trials, "fair" or otherwise. In fact, some were unquestionably innocent.

For the Bush apologists who require them, help yourselves to all the meaningless caveats you want. Saddam Hussein was far more brutal, more tyrannical, more liberty-abridging than George Bush. When it comes to internal repression, the two should not be compared.

Those who take comfort in comparisons like that, who think that these sorts of rationalizations constitute some kind of mitigating argument -- "hey, American behavioral standards still hover above those of Saddam's Baathist Iraq, so only deranged Bush-haters would object to America's treatment of its detainees!" -- are precisely the people who have no understanding of what kind of country America is supposed to be.

It is truly vile to listen to George Bush anoint himself the Arbiter of Due Process and Human Rights by praising the Iraqis for giving a "fair trial" to Saddam when we are currently holding 14,000 individuals (at least) around the world in our custody -- many of whom we have been holding for years and in the most inhumane conditions imaginable -- who have been desperately, and unsuccessfully, seeking some forum, any forum, in which to prove their innocence. This lawlessly imprisoned group includes journalists, political activists, and entirely innocent people.

The Bush administration has been steadfastly refusing to grant the very "fair trials" which served today as the basis for the President's pious, patronizing praise for the Iraqis (which, in reality, is intended as self-praise). The President and his followers -- including the majority of the 109th Congress, which just enacted the Military Commissions Act -- have made unmistakably clear that they do not actually believe in fair trials, literally.

The President's unreviewed and unreviewable accusation of guilt is sufficient to justify imprisoning anyone -- including for life -- and no process at all, let alone a "fair" one, is necessary. After all, allowing "fair trials" for those whom we consign to Guantanamo and similar hellholes might "swamp" our busy court system, an administrative concern which, by itself, easily outweighs the imperative of proving someone's guilt before deeming them to be Guilty.

And all of this is to say nothing of the President's grotesque praise for what he called "a society governed by the rule of law," praise issuing from the same person whose presidency has been centrally predicated on his claim to be larger and more powerful than the petty constraints imposed by "law" -- something which is, at best, a theoretical luxury to be enjoyed during peacetime but not during our Eternal War.

Apparently, "fair trials" and the "rule of law" are requirements for the Iraqis if, in the President's moving words, their "young democracy [is to] continue to progress." But for our older democracy, such concepts are quaint and obsolete relics which must not interfere with the Leader's Will and with his Glorious, Endless War.

UPDATE: Dahlia Lithwick has the only non-worthless year-end Top 10 list I've ever read -- The Top 10 Most Outrageous Civil Liberties Violations of 2006. The ultimate perpetrator of each abuse is the same individual who today arrogated unto himself the right to pat the Iraqis on the head for their embrace of "fair trials" and their adherence to the "rule of law."

* * * * * * *

On Thursday, I was a guest on a radio program hosted by Sean-Paul Kelley, who blogs at The Agonist. The show is broadcast in San Antonio. Sean-Paul is an excellent interviewer and we discussed multiple topics, including the President's war-making powers, our policies towards Iran and Iraq, and the torture bill. For those interested, the podcast of the interview (about 35 minutes long) is here.

UPDATE II: One need not agree with each of Jane Hamsher's specific points here, but she has some of the best insight into the underlying meaning and creepiness of the Saddam execution -- the way it was done and the motives behind it far more than the act itself -- and she expresses those insights perfectly.

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