Amidst the chaos of this country’s economic collapse, another collapse is occurring, one that strikes at the heart of the American system of criminal justice.
It’s been happening for some time.
Back when we first clipped on a press pass back in 1966, the country was near the end of a legal revolution, the years when Earl Warren served as Chief Justice of the United States Supreme Court.
When Dwight Eisenhower appointed Warren in 1953, he thought he was getting a law-and-order conservative. What he got was a judge who cherished the rights of human beings to have equal access to public institutions and to ensure their fair treatment by cops and courts when they were criminally accused.
Among Warren’s accomplishments were Brown vs. Board of Education, which ended segregation in public schools, Gideon v. Wainwright, mandating legal representation for the indigent, and Miranda v. Arizona, which requires arresting officers to inform suspects of the basic constitutional rights.
Rapid right-wingers like the John Birch Society hated him, plastering the country with billboards blaring IMPEACH EARL WARREN. They hated him for granting rights to black and brown people, and for “coddling criminals”.
Warren retired in 1969, and Richard Nixon replaced him with Warren Burger, a man more like Ike thought he’d be getting.
In the years since, Warren’s civil libertarian agenda has been pared down by Congress, while similar changes were taking place at the state level.
Back in 1975 when we first covered courts for the Santa Monica Evening Outlook, California juries were instructed that criminals be found guilty only in they believed the prosecution had proved its case “beyond a reasonable doubt and to a moral certainty.” Now, thanks to the California legislature, that last part is gone, the one requiring moral certainty of guilt.
And the scope of human behavior falling under the sway of criminal law seems to grow with each passing day, much of it directed to the protection of corporate interests, as is the case of the law now pending in Congress that would smack five-year federal prison terms on folks who post You Tube videos of their drunken renditions of copyrighted songs.
And when it comes to the law, America’s treatment of the poor and minorities is, well, criminal — a major reason that America incarcerates a higher percentage of its population than any other nation, and kills more of them, too, under the cloak of “justice.”
Between legislators and the courts, we’ve become the most punitive nation on earth.
But Barack Obama, a man who as both an African American and a former constitutional law prof should cherish the Warren legacy, has done more to demolish it than any president in living memory.
It’s Barack Obama who declared by presidential fiat his right to issue death warrants, absent any other legal process or possibility of review, to kill any American citizen he designates an enemy of the state.
And not only has Obama not dismantled America’s practice of “extraordinary renditions” to torture sites and the practice of detention established under his predecessor, his military now claims the right to deny freedom to those foreign nationals found not guilty by military tribunals but now claims that officers who sit on those tribunals should not be told that even if they find an alleged “nonmilitary combatant” innocent, that doesn’t mean the military can’t keep him locked up for life at Gitmo.
The Miami Herald’s Carol Rosenberg has the sad details:
The U.S. military tribunal for the USS Cole bombing suspect has no power to free a captive found innocent of war crimes but shouldn’t be told the terror suspect could be held for life anyway, Pentagon prosecutors said in a court document made public Wednesday.
Defense lawyers want the judge presiding at the death-penalty trial of Abd al Rahim al Nashiri to notify would-be jurors that acquittal of war crimes won’t necessarily mean the Saudi-born captive walks free from the U.S. prison camps at Guantánamo.
Nashiri’s Camp Justice appearance will mark the first time he’s seen in public since his 2002 capture in the Arabian Gulf region and disappearance into a network of secret CIA prisons called “black sites.” He allegedly ran Al Qaida’s gulf attacks before and after 9/11. A Congressional inquiry found that he was waterboarded and interrogated by loading a gun and revving a drill near his head.
Some jurors might not want to serve in a system that does not grant a jury the power to free an innocent man, Navy Lt. Cmdr. Stephen Reyes and civilian defense counsel Rick Kammen argued in a motion.
Military commissions only have the authority to try Nashiri on war-crimes charges, prosecutor Anthony Mattivi replied in an eight-page brief. “Congress did not authorize the commissions to resolve every aspect of the life of the accused,” Mattivi wrote.
Acquittal would only mean that Nashiri wouldn’t be subject to the double jeopardy of a future trial on the same charges, he said.
Ah, that’s the no-Hope™ Change™ we can believe in.