Wednesday, January 17, 2007

Cameron Crazy and Gitmo Lazy

Reading up on the shocking misconduct of Mike Nifong, the prosecutor leading the case against the accused Duke University lacrosse players, I was struck by the similarities between that case, and the legal issues facing detainees at Guantanamo Bay. The two controversies share something in common in that both represent a failure on the part of government officials and citizens to appreciate and respect one of the most integral foundations of our legal system: the notion that the accused should be presumed innocent until proven otherwise.

Although Nifong acted with galling malfeasance, he was not the only party that bears responsibility for what is beginning to look more and more like a nightmare ordeal for the wrongly accused. There were faculty at Duke University that irresponsibly rushed to publicly denounce the accused, protesters immediately began hounding the students outside dorm rooms and traveling from class to class, and the University itself suspended the entire lacrosse season and the academic careers of the accused (only inviting them back to the University last week as the case against them disintegrated).

The fault lies with the rush to judgment - or better yet, pre-judgment. For too many, the accusations became synonymous with the crimes themselves. Why wait for a trial when the facts were so damning: these were white, privileged, athletes at an elite private university partying it up in a frat house with alcohol and strippers. Nuff said, right? Further, as a result of the shameful history of persecuting and vilifying rape victims in this country (and every other country for that matter), and dismissing their accusations as spurious, some on the Left (properly concerned with these issues), have developed a trigger happy reaction to such accusations. There has been an overcompensation of sorts.

Predictably, the case became a cause celebre for the Right wing punditry and blogosphere, who tend to show more agnosticism in such matters (perhaps reacting to what they perceive as a knee-jerk jettisoning of "presumed innocent" when a charge of rape has been leveled, perhaps more cynical reasons). Their skepticism, if overly reflexive in some instances, has been vindicated.

Interestingly, there is an inverse relationship between Right and Left with respect to the treatment and classification of those accused of terrorism - both foreign citizens detained at Gitmo, and US citizens like Jose Padilla who have been brutalized by a detention policy run amok. The roles are reversed.

For too many on the Right side of the spectrum, the accusations become synonymous with the crimes themselves. Why wait for a trial when the facts are so damning: these are Muslim men, picked up in Afghanistan and other parts of the globe where terrorists are known to reside and they have been accused by the US government of dangerous affiliations at a time of heightened tensions. Further, as a result of the psychic impact of 9/11, and the raw fear of future terrorist attacks, some on the Right (properly concerned with these issues), have developed a trigger happy reaction to such accusations. There has been an overcompensation of sorts.

Publius hones in on the conceptual breakdown that, in different contexts, is affecting Americans across political spectrum:

Other than its obnoxiousness, the thing that really stands out about Stimson’s critique is the basic conceptual error that we've seen again and again in the anti-terrorism debates — equating “terrorists” with “those accused of being terrorists.” People make the same error when they equate efforts to ensure accused people actually are terrorists with efforts to “protect terrorists.” I’m fully confident that most administration officials understand this distinction perfectly well, but consciously choose to ignore it...

In this sense, LawFirmGate is intertwined at the conceptual root with the broader debates over habeas corpus, torture, etc. In all these debates, one side (including the administration) assumes that detainees are terrorists and operates on that assumption. The other side, however, starts from a position of doubt and skepticism — i.e., they believe that accusations alone do not a terrorist make.

You see this basic conceptual divide play out in a number of different contexts. Take habeas. It really can’t be stressed enough, but the point of habeas is not to let terrorists go free, but to ensure that the people you have detained are in fact terrorists. Habeas forces the executive branch to justify its detention — it is, in this sense, an information-generating tool.
In that sense, I would hope that the Right and Left could teach each other a lesson about the presumption of innocence - one that should be embraced with respect to all accused parties, regardless of the underlying crime and extenuating circumstances that contribute to the impression of guilt.

This is not about terrorists' rights or criminals' rights. This about maintaining a process to insure that everyone gets their day in court, and that the rest of us refrain from judgment. At least until the judge gets around to it first.

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