Muzzle the Defense

April 2, 2011 8:54 PM

The chances that a powerful person will make an error are much greater than those of a weak person. Scott Horton translates Benjamin Constant, references Robespierre, and offers insight on modern efforts to preclude meaningful trials in federal court.

There is something about power that distorts judgments more or less. The chances that a powerful person will make an error are much greater than those of a weak person. Power has recourse to its own resources. Weakness must draw on reason. All other things being equal, it is always true that those who govern have opinions which are less just, less sane, less impartial than those whom they govern.
Benjamin Constant

...

And enormous efforts are underway in Congress—in measures proposed by John McCain, Lindsey Graham and Joe Lieberman—to skew the entire process in favor of the prosecution, to put a muzzle on defense lawyers and to mark as radioactive evidence which would reflect poorly on the jailers (or more particularly, the shadowy political hacks who manipulated the process).

posted by fartknocker (20 comments total)

I was thinking on something similar to this recently in regard to what's been happening in Wisconsin, and how authoritarians in wishing to appear strong and in control, lose perception of how monstrous and heavy handed their actions can seem to those outside their circle, and especially to those who oppose their ideas.
posted by Skygazer at 9:30 PM on April 2, 2011 [3 favorites]

I feel like this post could be fleshed out a little better. I have no doubt that the government is consolidating it's judicial power and making it harder for defendants to get a fair trial (if only because that's the kind of thing that the FedGov does best), but it would be nice to have an accounting of these efforts to provide some context for the Harpers blog post and two links to wikipedia.
posted by Avenger at 9:31 PM on April 2, 2011 [2 favorites]

This does not mean that those facing charges are political martyrs like Georges Danton, however. Some are serious terrorists and criminals, whereas others are guilty simply of the “crime” of being in the wrong place at the wrong time.


Huh, Danton did not really martyr himself. You do not become a martyr from a repressive system you created. Danton was his own victim and lets not forget the pleas of both sides before Dantons arrest. And that is the key to understanding this event, factions with a faction amongst factions out of control with a two front war and internal strife, famine, eroded infrastructure. Danton could have seized power then ended the committees but he tried for the convention, when that failed, which he should have seen IMO, he believed if put on trial, he could have been acquitted. Also Desmoulins wife was executed after Danton and that just pissed everyone off.

Constant musters many incidents from the history of the revolution to make his point, but few are more compelling than the trial of Georges Danton, Camille Desmoulins and a dozen others in 1794. They were the “indulgents” who had preached moderation in the face of Maximilien Robespierre’s bloody excesses, the delirium tremens of the revolution

Huh.

Danton, immediately after the fall of the Girondists (28 July 1793), had thrown himself with extraordinary energy into the work to be done. He was prominent in the task of setting up a strong central authority, taming the anarchical ferment of Paris. It was he who proposed that the Committee of Public Safety be granted dictatorial powers... his best to make supreme in the state. His position during the autumn of 1793 was that of a powerful supporter and inspirer, from without, of the government which he had been foremost in setting up.


to compare and contrast these examples is, well, it seems rather extreme.
posted by clavdivs at 9:36 PM on April 2, 2011 [4 favorites]

So if you aspire to greatness, you're already disqualified if you're not screwing up.
posted by StickyCarpet at 9:38 PM on April 2, 2011

With great power comes great liability.
posted by furiousxgeorge at 9:46 PM on April 2, 2011 [1 favorite]

I've always been willing to cut Obama a lot of slack because I knew, in our highly divided political climate there were going to be limits on what he could accomplish and he'd have to pick and choose his goals. And in the big picture I think he's done a pretty good job of that; of course I wish he'd done more and better, but that he's been able to do as much as he has is really impressive when you look at what he's up against.

A good example is the repeal of DADT. The LBGT community was all pissed off at him for not just doing it, but it was clear just doing it would have cost him a lot of other opportunities. He picked a moment when other objectives had been secured and he was in a position of strength to counter the backlash.

But the situation at Gitmo is just strange. He didn't have to campaign on the issue of closing the place so it's hard to believe he suddenly has a strong ideological belief that it needs to stay open. And it's hard to believe there would be much public fallout from closing it and simply having trials; after all, it's been nearly 10 years since 9/11 and a lot of water has passed under the bridge. So there must be some fairly powerful forces which aren't obvious that have apparently shut down the very idea for him.

I suspect those forces are an understanding that it will become undeniable that certain powerful people really did commit war crimes, combined with a tacit agreement that former Presidents will not be held accountable for their decisions in office. It's easy to believe that such an understanding might have originated with Truman and the A-bomb. Whatever the Constitution or our treaties might say, the organization must believe that the President will do certain unpleasant things, perhaps with little warning, when necessary. The President cannot be thinking of Nuremberg when NORAD calls and they ask him for the launch codes. So the President is assured that his decisions will not be allowed to fall back on him.

And this is an agreement which benefits Obama himself, however evil it might seem at times, and who knows hints might have been dropped about JFK and Reagan to make sure he got the message. So Gitmo stays open, certain campaign promises that might not have been made if he were more of an insider before the election go unkept, and Obama spends his political capital where he thinks it will do the most good.
posted by localroger at 6:29 AM on April 3, 2011 [3 favorites]

Tl; dr.

What "measures proposed by John McCain, Lindsey Graham and Joe Lieberman" are they talking about?
posted by dozo at 7:29 AM on April 3, 2011

And it's hard to believe there would be much public fallout from closing it and simply having trials; after all, it's been nearly 10 years since 9/11 and a lot of water has passed under the bridge

While this would be true in any sane society, the Republican Party has somehow convinced its supporters that if trials are held, the detainees will all be given acquittals, Congressional Medals of Honors, and "$10 off your next bombing" coupons...and that if even jailed inside the U.S., they will use their terrorist mind blasts to vaporize the nearby towns and escape.
posted by Dr.Enormous at 8:50 AM on April 3, 2011 [1 favorite]

This is interesting in light of the Supreme Court Connick v. Thompson decision which basically appears to immunize anyone in government from responsibility regarding prosecutorial malfeasance. I am horrified. Actually that thing needs it's own FPP or needs to be rolled into this one. I am no legal scholar, so I am not so sure I have got it right. I just read one article on Slate and came running here to see if anyone had posted on it yet.
posted by Belle O'Cosity at 8:51 AM on April 3, 2011 [1 favorite]

But the situation at Gitmo is just strange. He didn't have to campaign on the issue of closing the place so it's hard to believe he suddenly has a strong ideological belief that it needs to stay open. And it's hard to believe there would be much public fallout from closing it and simply having trials; after all, it's been nearly 10 years since 9/11 and a lot of water has passed under the bridge. So there must be some fairly powerful forces which aren't obvious that have apparently shut down the very idea for him.

Look, I know that having Gitmo still open for business is frustrating, but the blame for it remaining open shouldn't be laid at Obama's feet.

On Jan 22, 2009, which was pretty much immediately after he was inaugurated, he issued an order saying that it should be closed. But these things take time and money, and by May 2009, the Senate had denied any funds be allocated toward moving the prisoners out of the base at Guantanamo, effectively killing any chance Obama had then of following through on his campaign promise.

Congress has remained steadfast in its refusal to allow funding of the closure of Gitmo, and Obama has finally abandoned his efforts to close it after 2 years of trying. Instead he's trying to move forward with some form, ANY form of trials for the men there, in the hopes that they can clear it out and close it through sentencing or acquittal.

So, yeah, the "very powerful forces" are pretty obvious to anyone who has been paying attention -- it's Congress, members of which have either a real or symbolic interest in keeping that base open.
posted by hippybear at 9:04 AM on April 3, 2011 [3 favorites]

Look, I know that having Gitmo still open for business is frustrating, but the blame for it remaining open shouldn't be laid at Obama's feet.


The problem with closing Guantanamo, as a political statement, was that Gitmo was a symbol of a whole extra-judicial process: assasination, rendition, transport, interrogation/torture, indefinite detention. It would have been easy to close Gitmo and maintain the whole process. Obama could promise to close Gitmo and please the human rights community, make an international statement, and still keep the national security types happy, who think the whole extra-judicial backdoor is necessary. He didn't campaign on ending extraordinary rendition AFAIK. In fact, to really run against the system set up would put him at loggerheads with the whole "War on Terror," and run dangerously close to identifying crimes and criminals that would have us looking backwards rather than forwards.

Obama and Gitmo is a perfect example of how pragmatism becomes cynicism becomes complicity.
posted by ennui.bz at 9:24 AM on April 3, 2011

hippybear, there is a simple response to the refusal to provide funding -- it doesn't cost anything to open the door. Tell the pigs who are blocking the funds that if they don't want to fund relocation to legal prisons then they can watch from overseas as the ex-prisoners bend the ear of the Cuban government, but the complex is closing. Let them explain that to their fear-addled constituents.

You don't have to intend to do it. You put it in a speech. Obama's real good at that. (Extra bonus cred: Sane people will know you're bluffing, but the fear-addled teabaggers who think teh wurld wuld end are apt to believe Obama the Antirchrist would actually follow through.) He didn't even try to make a case. In fact, he has been very uncharacteristically quiet about the whole thing. For whatever reason it's a battle he has decided is not worth engaging.

And it looks from here like the underlying problem is that, laws be damned, there are certain people there who cannot be allowed to tell their story. They can't be allowed to talk even to their own lawyers without monitoring, they can't be allowed to mix with a general prison population, they sure can't be allowed to talk to the press or to anyone who might relay anything they say to the press. (There are hardly any published direct quotes from Gitmo detainees, which is a remarkable degree of isolation.) And since we do fine letting serial killers and rapists do those things you have to really wonder what those stories they can't tell would be.
posted by localroger at 10:01 AM on April 3, 2011 [1 favorite]

The problem with closing Guantanamo, as a political statement, was that Gitmo was a symbol of a whole extra-judicial process: assasination, rendition, transport, interrogation/torture, indefinite detention. It would have been easy to close Gitmo and maintain the whole process

Thge problem is that you confuse the base with the detention center. You can close the detention center but barring treaty stuff, GITMO stays.

they will use their terrorist mind blasts to vaporize the nearby towns and escape.
posted by Dr.Enormous

This was gamed out in 2003 using SUPERMAX as a model. It was found that the prisoners would need to escape then use number #2s' enveloping balloons to vaporize nearby towns and villages.
posted by clavdivs at 11:27 AM on April 3, 2011

clavdivs I think it's universally understood that by "closing Gitmo" nobody means closing the entire base, the detention center is what they're talking about.
posted by localroger at 12:19 PM on April 3, 2011

clavdivs I think it's universally understood that by "closing Gitmo" nobody means closing the entire base, the detention center is what they're talking about.

Yeah, well, see, that's kind of the problem. Because Cuba, as far as we know, won't take them. Hell, no one will take them. And since Gitmo is under US control, they have to cross an international border to leave the base, and Cuba, like all sovereign nations, controls its borders. So just showing them the door and letting them walk out isn't exactly an option.
posted by valkyryn at 3:10 PM on April 3, 2011

In general, this is a weaksauce post. The author invokes Robespierre to make a rhetorical point about something he doesn't like, but totally buries the lede. The quote makes it sound like we're going to take a look at the problem of the presumption of guilt v. the presumption of innocence, which really is something defense counsel runs into these days. Instead, we's talking about Gitmo. Without having anything all that interesting to say.

Which is really too bad, because what he made it sound like he was going to talk about is actually pretty damned interesting. On one hand, we really do want to make the government prove every element of its case beyond a reasonable doubt, so the presumption of innocence is important. On the other hand, prosecutors' resources are limited, particularly at the federal level (three-odd offices covering the same territory of dozens of DA offices), so the government usually only presses charges when they think they've got the guy dead to rights. Which means that as a matter of practice, it does make sense to assume that if a defendant is in court, he probably did it. At this point, no one's really sure what to do about this, so there's definitely a good article to be had there.

But no, Horton spends two paragraphs making like he's going to go that way and then introduces Gitmo halfway through the article. Bad journalist! No biscuit!
posted by valkyryn at 3:16 PM on April 3, 2011

Fucking stupid article with a false premise.

I think it's universally understood that by "closing Gitmo" nobody means closing the entire base, the detention center is what they're talking about.

Thanks!, boy howdy, i was confused.
posted by clavdivs at 8:58 AM on April 4, 2011

Well, clavdivs, it sounded like you were. You quoted this:

The problem with closing Guantanamo, as a political statement, was that Gitmo was a symbol of a whole extra-judicial process: assasination, rendition, transport, interrogation/torture, indefinite detention. It would have been easy to close Gitmo and maintain the whole process

...and immediately thereafter you said this:

Thge problem is that you confuse the base with the detention center. You can close the detention center but barring treaty stuff, GITMO stays.

Sure sounded to me like you honestly thought ennui.bz was talking about closing the entire base and were trying to correct him.

To be very clear about this, the Gitmo detention center was set up because the Bush administration morons thought it would be a constitution free zone not being within the US. The Supreme Court has since shot that down so now there really is no "legitimate" reason for it to exist any more (for values of "legitimate" that equate to "ratified by the SC, no matter how evil").
posted by localroger at 10:22 AM on April 4, 2011

It's easy to believe that such an understanding might have originated with Truman and the A-bomb.

localroger, you might "enjoy" the book Bomb Power which is about the emergence of the modern security state from the development of the bomb. (Enjoy in scare quotes because I, for one, found it immobilizingly depressing.)
posted by epersonae at 11:51 AM on April 4, 2011

localroger, no Grar, was confused. Sorted that we did. I was caustic with my sentiment about this article, not towards you folks. Really, the money used to pay for this article, how much good could it have derived ...off topic, but the article sounds like a hit-piece.

expansion of Constants constant nagging about the Terror is interesting in and of it-self. IMO, he had a point. That episode is one of the most complex events in European history.
esp. the months, like Sept. 93' to April 94'. And he fails to mention the terror outside Paris which was less...judicial.
posted by clavdivs at 10:13 AM on April 5, 2011