Belaboring the Obvious

Saturday, May 23, 2009

That business of preventive detentions...

... and military commissions, Obama-style.

What is still being unsaid in all this is one simple underlying truth: many of the defendants--and the witnesses against them--have been tortured in one way or another, and that's why they can't be transferred to the criminal court system. Were they to be tried in open court, it is inevitable that evidence of torture would be introduced, either during the discovery phase or during the trial itself. This would make their convictions highly unlikely, for lack of admissible evidence, thus presenting the court with the politically unpleasant job of releasing people whose reputations have been tainted by the news media and the government as the "worst of the worst," regardless of their actual criminal guilt.

But, more politically explosive than that, if the civil criminal courts receive credible evidence of law-breaking during trial or discovery, they are bound by law to make referrals to the appropriate US or state's attorney for investigation and prosecution, if required, and this is the great legal bug-bear that Obama is hoping to avoid by tinkering with indefinite permanent preventive detention and military commissions kangaroo courts.

In the midst of this debate, much opprobrium has been heaped upon the "far left" in the U.S. for demanding that Constitutional mandate and the rule of law be observed. These demands, say the right wing (and the potential defendants in its midst), are nothing more than an irrational desire for political vengeance.

Barbara Jordan made reply to this charge thirty years before the fact, in saying, “What the people want is very simple – they want an America as good as its promise.”


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