Monday, October 16, 2006 8:43 PM

How the presumed innocent become guilty

During the public debate over the rights that detainees in Guantanamo and elsewhere ought to have, I've noticed a disturbing tendency to morph a terrorism suspect into a convicted terrorist. On today's NPR news broadcast of All Things Considered, Melissa Block interviews several Missouri voters. When they talk about security and civil liberties, they say what many folks must be thinking in the privacy of their own homes. Their comments cover the spectrum from civil libertarian to right wing hardliner.

Here's a transcription of that excerpt (done by me, so any mistakes are mine):

Melissa Block
When voter Mindy Lawrence thinks about homeland security, she sees an erosion of civil rights, and she brings up this issue, the suspension of the right of habeas corpus for terrorism suspects.
Mindy Lawrence
"The problem with that is, that's going to start leeching down to who do they think is a terrorist, who do they suspect is a terrorist. It's a really nasty little problem that's about to happen if they suspend habeas corpus for anybody. You're [We're?] losing the rights that our Constitution and our Bill of Rights gave us, in the name of fighting terrorism. There's gotta be a fine balance in there, and I don't think we've reached that balance at all. In fact I think we're losing that balance."
Faye Adams
"I don't really believe that the terrorists should be looked at in the same way that an American citizen should be looked at. I don't think that the freedoms that I enjoy should be applied to a terrorist who wants to kill me, who has sworn to kill me, who would even give up his life to kill me, simply because I'm a Christian. That's nuts."
Dorry Pease
"We've lived in fear since 9/11. It's constantly right there in front of us, terrorists. Our government makes us constantly focus on this type of thing. Personally I don't think we will ever totally eradicate terrorism, and I, I'm not saying we should stop fighting them, I'm not saying that at all. But I am saying that what our government is doing is not solving the problem. In fact it's making it worse. I would like to see us working towards, towards getting at the root of the fanaticism and the Islamic radicalism that's occurring. We're not doing that, we're just we're putting bandaids over a wound. I don't see us healing the wound at all, or even working towards it. I don't see where we're going at all. I feel less secure now, not necessary for myself and my husband, but I feel less secure for my children and my grandchildren, because I think they're going to be living in a much more dangerous world than what we have lived in, and that's what my concern is."

How many of us are like Mindy, or like Dorry? How many are like Faye?

A recent article in the Atlantic Monthly discusses the Lodi terrorism case in the context of religious awareness and identity. Umer and Hamid Hayat were charged with lying to FBI agents, and Hamid was further charged with providing material support to terrorists by attending a terrorist training camp. Hamid was convicted, and Umer's jury could not reach a verdict.

The Atlantic article, though long, is well worth the read. But I want to highlight one portion of it here, a discussion with the foreman of the jury, ex-military retired salesman Joseph Cote. The government's strategy in that case was to prosecute in order to prevent acts of terrorism from being committed; this means that the jury had to find that the government had proven that Hayat had provided material support or resources “knowing or intending that such material support and/or resources were to be used in preparation for, or in carrying out, terrorism that transcends national boundaries”.

But Hayat hadn't taken any concrete steps apart from providing the "material support" (attending a training camp--if even that were true). So the jury was left trying to discern whether Hamid had the intent to carry out a terrorist act, or not. Here's what the article says about how they made that decision.

This was their conundrum: Do you send a man to prison—ostensibly for training and lying—when the real question is whether he is a threat, and most of you don’t think he is? "That’s what made the verdict so tough," Cote said. "Because we thought in the gut, 'Maybe he may not do it.'" But what Cote called the "literal world," defined by the boundaries of law and evidence, did not allow for shades of gray.
During our interview, Cote said several times that the jurors were not asked to decide whether Hayat was capable of engaging in terrorism. "Believe it or not, that’s the only way I can sleep nights," he said. And yet they did decide it, Cote said, concluding that the evidence suggesting that Hayat would act—the scrapbook, the prayer, and so on—was stronger than the evidence that he would not. In essence, the prosecution’s strategy had paid off: there were no details of a plan, but Hayat’s purported predisposition—his words, more than his deeds—had become decisive. >

There you have it: there is no longer room for reasonable doubt, but only for "more likely than not". The risk, it seemed, was just too high to let a possible terrorist go free, even if he might be innocent after all.

I close here with the final words of the Atlantic article's author.

[Cote] argued that it was "absolutely" better to run the risk of convicting an innocent man than to let a guilty one go. "Too many lives are changed" by terrorism, he said. "So shall one man pay to save fifty? It’s not a debatable question."
I left his house and started back to Sacramento, passing the grounds of Folsom State Prison along the way. In the aggregate, at least, Cote’s instinct seemed to offer an appealing surety. Only when I was back on the highway did I see its practical flaw: prosecuting and imprisoning one innocent man would do nothing, in fact, to save the fifty at risk.


6:47 PM

RTFB (Military Commissions Act)!

I've heard that Americans work more hours every week than workers in various European countries, or at least, that we have less free time. So that probably explains why so many people have not taken the time to actually *read the fine bill* that will be signed by President Bush into law tomorrow. For all of those folks, I have decided^Wbeen prodded into doing the following public service. I'm posting a description of the major parts of the bill, with text excerpts. Enjoy... err, so to speak.

First things first: the bill defines what the term "unlawful enemy combatant" (UEC) means. Any person who has engaged in hostilities or who has purposefully and materially supported hostilities against the U.S., *or* any person so designated by a Combatant Status Review Tribunal (CSRT) or a competent tribunal designated by the President or Secretary of Defense. Here's the text:

     (1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlaw-
>ful enemy combatant’ means—
           (i) a person who has engaged in hostilities or who
     has purposefully and materially supported hostilities
     against the United States or its co-belligerents who is
     not a lawful enemy combatant (including a person who
     is part of the Taliban, al Qaeda, or associated forces);
           (ii) a person who, before, on, or after the date of
     the enactment of the Military Commissions Act of 2006,
     has been determined to be an unlawful enemy combatant
     by a Combatant Status Review Tribunal or another com-
     petent tribunal established under the authority of the
     President or the Secretary of Defense.

That second part of the definition does seem pretty broad, doesn't it? It doesn't set forth any requirements upon how a CSRT or other tribunal makes that determination; it seems to say that the act of designating someone as a UEC makes them one, for the purposes of this Act.

I expect that folks will make the legal argument that this cannot be what was intended when the bill was passed. However, given that, in the past, the current Administration has claimed the power to designate any person of its choosing as a UEC, to hold that persosn indefinitely, and to hold that person without any judicial review of the person's status or conditions of confinement, including U.S. citizens, perhaps this broad definition may well be intentional. (The claim of unchecked power of the executive in a war context has been labelled the theory of theunitary executive.)

Part 1 of the definition is troubling in and of itself; "purposefully and materially supporting hostilities', I suppose, means "purposefully and materially supporting" terrorists, if we are talking about the War on Terror. This sounds pretty reasonable, but the problem is that supporting terror seems to be used these days to depict folks who don't agree with or support the current Administration's agenda. Here are some representative examples from the press:

During Kerry's campaign for president, Bush, Orrin Hatch, Dennis Haster, and various others all charged that Kerry and his backers were giving comfort to terrorists. In March of this year, Sen. Wayne Allard argued that Feingold has time and time again taken on the side of the terrorists when Feingold introduced a resolution to censure Bush. Most recently, the National Republican Senate Committee said that two Repbulican Senators who voted for Specter's amendment to the MCA to put habeas corpus back into the bill had "sided with trial lawyers and terrorists, even though they voted for the final version of the bill.

But lest you think these sort of remarks are simple grandstanding, I direct your attention to a collection of documents obtained by the ACLU about Pentagon and Homeland Security surveillance of various anti-war or other student groups. The documents date from 2001 through 2006, and include coverage of such groups as Students Against War from UC Santa Cruz, and an antiwar group that protested at the Oakland Docks in 2003, where police opened fire with so-called "less-than-lethal" weapons, resulting in worldwide coverage and subsequent inclusion of the incident in that year's UN Human Rights report.

That's all for today. Part two coming soon...


6:43 PM

Foot foot (How quickly we forget)

On Friday, after three weeks of crutches, three weeks of not being able to carry my own food from the kitchen to the living room (let alone downstairs to the bedroom), I finally got my cast off. I'm in a special wrap "shoe" which is basically a stiff piece of sole with a cloth piece on each side and velcro to strap it on.

Now I'm discontent because, after an hour of sweeping up leaves in the front yard and pulling up ivy, even though I was moving very slowly and carefully, my foot hurt enough that I had to stop and elevate it for an hour. There's no pleasing some people--namely, me.


6:39 PM

T party

Real Soon Now. I haven't set the date, but sometime in late November or early December, be looking for an announcement. Why?

Because on November 20, if nothing goes wrong, I'll be getting my first shot of testosterone. Woo hoo!

So here's the deal. My insurance company will not cover hormone therapy for cases of gender reassignment (or half-assignment, as the case may be, for us genderqueer folks). This means that I can use the local pharmacy at the clinic I attend, which has no contract with the insurance company. The local pharmacy has very cheap rates. So cheap, that, without insurance, I can actually afford the treatments, and with it, I probably couldn't. Go figure!