In his speech at the National Archives Building in Washington yesterday, President Obama reasserted his belief in the core values of the US, and affirmed that they were not to be the unwitting casualties of the nation’s security and anti-terrorism policies.
As such, he condemned the actions of the previous administration in these areas, and vowed to change direction:
Now let me be clear: We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable -- a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass. And that's why I took several steps upon taking office to better protect the American people.
As such, his early decisions to ban torture techniques, and to close Guantanamo within twelve months were sound. We can only but applaud them.
What was disappointing however, but not surprising, was his commitment to preserve the military commissions system, one that is deeply flawed, and whose sole purpose is to secure convictions that could not possibly be obtained in conventional civilian or military courts.
Though Obama has vowed to reform them, the military commissions prevent the accused from examining all incriminating evidence; allow secret evidence against the accused that he cannot review; do not allow the defendant to choose his own lawyer.
Furthermore, a non-guilty verdict is no guarantee that the accused will be freed…
One can therefore be declared innocent, but held indefinitely behind bars!
All that is required for some hapless individual to find himself picked up anywhere on this planet and hurled into the clutches of the system is for the President to declare that he is an «unlawful enemy combatant»…
It is a system which is entirely controlled by the military: judge, prosecutor, lawyer and jury…
The sole vocation and reason for being of these courts is to convict those we fear on the basis of evidence that would be thrown out of any legitimate court…
Can our equanimity and peace of mind durably rest on such morally dubious shortcuts?
Secondly, the notion that there are some individuals that we can legitimately hold indefinitely without trial is morally suspect.
The President said:
We're 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, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Due to the fact that the rights of these people have been so egregiously violated, and without the slightest compunction, judging by the former vice president’s recent statements, they cannot possibly be tried because no court, even the military commissions, could ever consider as legitimate any evidence or testimony, due to their total lack of credibility, and the suspect and damning circumstances under which they were extracted.
Because we have denied them their rights, no court could ever consider the charges against them without dismissing them altogether.
Since that option is considered unacceptable in Washington, then there can be no trials.
The consequence is clear: prolonged, indefinite detention without charge…
Because we violated their rights in the recent past, we shall continue to do so into the distant future.
Because we denied them justice yesterday, we shall continue denying them justice tomorrow.
What kind of justice is that?
These people deserve their day in court, in a court which will protect their rights.
For justice is not a luxury reserved for those who resemble us, or for those whose deeds and values we approve.
It either exists, or it does not: it cannot prevail in New York or Washington, and be ignored at Guantanamo.
Nor is this about being an absolutist, to use the President’s word, when dealing with human rights.
Defending them, as well as human dignity, should not be the sole responsibility of naïve do-gooders, including those who, because they happen to be oblivious to the evils of this world, do more harm than good.
But we cannot have it both ways: we cannot pretend to be a democratic society if we violate the rights of those under our responsibility, even if we do not like them.
We cannot still pretend to be that shining city on the hill if we unabashedly imprison those we are afraid of, and throw away the key, because, were we to respect our democratic traditions and institutions, they would undoubtedly be freed.
If we want to go down that road, we can do so. But then, we have to do so openly, without pretending that we still are what we consider we can no longer afford to be. Thus, we have to change our laws, declare that our previous conceptions of justice and democracy are obsolete, and institute a two-tier judicial system: one for us, and one for them, for those who we believe do not deserve the same fundamental rights that we possess, and that we consider our heritage.
How will we be able to make that distinction?
Will it suffice for the President of the United States to claim that so and so is an «unlawful enemy combatant» to forever strip that individual of all rights as a human being?
We shall also have to explain to our allies in Europe and elsewhere (though many in the US could not care less what the civilized world thinks) why we no longer believe that human rights are universal, but, in fact, reserved for the chosen few, the chosen few to be selected, naturally by America, and only America…
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