The Right to a Fair Trial

I can't actually believe that I find myself in a situation where I am writing this blog entry. It is a bit like discovering that I need to defend the prohibition against chattel slavery against an Administration that believes that, as long as the slaves are foreign nationals forced to work on foreign soil that its right to enslave people cannot be questioned.

Old Business: Bush’s Accusations

Before entering into today's topic, I want to address President Bush’s statements that, for all practical purposes, are grounded on the principle that, "If you do not say that I am the greatest and wisest of all Presidents, and if you do not follow my lead without question or objection, then you are providing aid and comfort to the enemy and betraying our troops to them.”

I wrote against this attitude on the blog entry for Sept. 25th, Dying In Vain. Supporting the troops means more than providing them with the best equipment and training, but also with leaders with competence and integrity. Just as it means throwing out equipment that does not work, changing training options that are ineffective, but also replacing leaders that lack integrity and competence.

New Business: The Right to a Fair Trial

Last week, the Senate, in a 49 to 42 vote, approved an amendment to the defense policy bill that would have prohibited prisoners from filing writs of habeas corpus, the legal instrument used to fight unlawful detention. Today, it reversed some of the damage in the earlier amendment. However, the fact that 49 Senators thought that it proper to deny the basic human right of having a trial by jury suggests that these people do not have a sufficient level of respect for the moral value of a right to a trial.

In researching this, I learned that this is not the worst violation of human rights that the federal government has made in the last few years. In Gherebi v Bush, No. 03-55785. D.C. No. CV-03-01267-AHM, the Bush Administration said that it had the authority to detain individuals indefinitely and to torture or execute them at will without the courts interfering. The 9th Circuit Court wrote in its opinion on the case,

“…under the government’s theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition. Accordingly, we view Guantanamo as unique not only because the United States’ territorial relationship with the Base is without parallel today, but also because it is the first time that the government has announced such an extraordinary set of principles–a position so extreme that it raises the gravest concerns under both American and international law.”

Actually, I can’t believe that I am addressing this issue. I would have expected something like this as unlikely as posting a defense of the moral prohibition against chattel slavery against a government that has claimed that, as long as Americans were enslaving foreign nationals and the slave farms and factories were on foreign soil, there are no grounds for protest.

Yet, it is a useful exercise from time to time to look at what a particular moral theory has to say about that which is obviously right or wrong.

The Main Argument Against

This has happened in a context where we have a very clear example that can be used to illustrate the moral wisdom of the right to a fair trial.

What if these people who have made the case that Prisoner X is a terrorist and deserves to be locked up for life with the same recklessness disregard for truth that they exhibited when making the case that Saddam Hussein was building weapons of mass destruction?

Members of the Bush Administration have clearly demonstrated their ability to view evidence through a strong filter of desire and, thereby, to draw completely false conclusions. When we look at their claim that Prisoner X is a very dangerous person who should be locked up for life, we should worry that they have looked at the evidence through the same type of filter.

The Administration certainly has a motive to collect a group a people that it claims to be dangerous. It allows them to say to the American voters, "Look at the great thing we have done to make you safe. We have put these people who wanted to harm you away so that you are now safe. Now, vote for us."

Yet, just as their lust to believe that Saddam Hussein had weapons of mass destruction blinded them to what the evidence was really saying, perhaps they have been overzealous in their eagerness to believe that at least some of these people are dangerous. Certainly, it will do no harm to have a neutral party go over the evidence and decide for themselves if the Bush Administration actually has good reason to support its conclusions. This is the only way we are going to know which of these people are dangerous, and which of them the Bush Administration branded as dangerous without evidence to back it up.

Of course, we could adopt the position that mere suspicion of a crime is sufficient justification for a conviction and punishment. We could, for example, state that the moral principle underlying the 5th Amendment to the Constitution was a mistake -- that this so-called right to a fair trial was one of those things that sounded like a good idea 200 years ago, but has since been proved one of those quaint little follies of men living in a simpler time.

Supplemental Defense

There are several additional reasons why the right to a hearing before a fair and impartial judge is required, and that its importance increases with the degree of harm that is to be inflicted on the accused.

First, if the guilty and the innocent are treated the same way, then this gives people little incentive to remain innocent. We encourage people to remain innocent by telling them, "We are going to take care to separate the guilty and the innocent so that, if you remain innocent, we will take pains to keep you out of this type of situation."

Second, if we do not require that guilt be proved, we create opportunities for unscrupulous people to exploit the system to work off personal grudges. If I have a neighbor that annoys me, and the government cares only about suspicion, then all I need to do is make a phone call to the proper authorities and I can have my neighbor removed. This behavior is commonplace whenever the judicial process has been corrupted. Grudge informers were common in Nazi Germany and the former Soviet Union. Business owners used this to remove competitors, jealous lovers sought to remove their competitors, and political activists turned the state against their political rivals. Where guilt must be proved, this type of grudge informing is much less effective.

Third, we leave the door open for a corrupt government to consolidate power and destroy liberty. If judges can be barred from hearing cases, and the executive can be the sole judge of who lives and who dies, who remains free and who goes to jail, we create a sore tempatation for somebody to take this power too far. Tyrannies are not created by people who think themselves evil. Some tyrants think of themselves as people who are trying to do great things, but who are constantly being held back by nay-sayers and critics who cannot leave the issue well enough alone. Eventually, it simply becomes too tempting to sweep these critics away so that one can get some work done.

Rest assured that if any politician has the unchecked power to arrest and imprison people that, somewhere down the line, polticial expedience will enter into the equation of who goes to prison and who stays out.

Innocent people have a right to know that if they stay innocent, they minimize the risk that they will be hauled away and kept in some dark and secluded space, out of sight, until some arbitrary decision is made as to their fate. They have a right to be secure in the belief that if they are hauled away, they will get a chance to explain their side of the story. They have a right to require that others abide by the moral principle that it is never the duty of the person whose life or liberty is being threatened to beg for that life or liberty. It is always the duty of those who would deprive others of life or liberty to justify their actions.

This is what it means to say that people have a right to life and liberty. Those who claim that they may arbitrarily deprive people of either are people who are asserting that no such right exists and that others live or remain free only at their pleasure.

If America is not working to defend the view that life and liberty are basic rights not to be lightly discarded, then what are we defending? And is it worth the effort?