This link has been bookmarked by 1 people . It was first bookmarked on 13 Sep 2007, by Larry Keiler.
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13 Sep 07
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The Bush strategy turns the law's traditional approach to state coercion on its head. With narrow exceptions, the rule of law reserves invasions of privacy, detention, punishment and use of military force for those who have been shown -- on the basis of sound evidence and fair procedures -- to have committed or to be plotting some wrong.
The police can tap phones or search homes, but only when there is probable cause to believe that a crime has been committed and that the search is likely to find evidence of the crime. People can be preventively detained pending trial, but only when there is both probable cause of past wrongdoing and concrete evidence that they pose a danger to the community or are likely to abscond if left at large. And under international law, nations may use military force unilaterally only in response to an objectively verifiable attack or threat of imminent attack.
These bedrock legal requirements are a hindrance to "going on offense." Accordingly, the Administration has asserted sweeping executive discretion, eschewed questions of guilt or innocence and substituted secrecy and speculation for accountability and verifiable fact. Where the rule of law demands fair and open procedures, the preventive paradigm employs truncated processes often conducted in secret, denying the accused a meaningful opportunity to respond.
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The real problems arise when the state uses highly coercive measures -- depriving people of their life, liberty or property, or going to war -- based on speculation, without adhering to the laws long seen as critical to regulating and legitimizing such force.
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At Guantánamo, for example, once said to house "the worst of the worst," the Pentagon's Combatant Status Review Tribunals' own findings categorized only 8 percent of some 500 detainees held there in 2006 as fighters for Al Qaeda or the Taliban. More than half of the 775 Guantánamo detainees have now been released, suggesting that they may not have been "the worst of the worst" after all.
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Overall, the government's success rate in cases alleging terrorist charges since 9/11 is only 29 percent, compared with a 92 percent conviction rate for felonies.
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The government's "preventive" immigration initiatives have come up even more empty-handed. After 9/11 the Bush Administration called in 80,000 foreign nationals for fingerprinting, photographing and "special registration" simply because they came from predominantly Arab or Muslim countries; sought out another 8,000 young men from the same countries for FBI interviews; and placed more than 5,000 foreign nationals here in preventive detention.
Yet as of September 2007, not one of these people stands convicted of a terrorist crime. The government's record, in what is surely the largest campaign of ethnic profiling since the Japanese internment of World War II, is 0 for 93,000.
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The preventive paradigm has also made it more difficult to bring terrorists to justice, just as FBI Director Mueller warned on September 12. When the Administration chooses to disappear suspects into secret prisons and use waterboarding to encourage them to talk, it forfeits any possibility of bringing the suspects to justice for their alleged crimes, because evidence obtained coercively at a "black site" would never be admissible in a fair and legitimate trial. That's the real reason no one has yet been brought to trial at Guantánamo.
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In short, we have gone from being the object of the world's sympathy immediately after 9/11 to being the country most likely to be hated. Anti-Americanism is at an all-time high. In some countries, Osama bin Laden has a higher approval rating than the United States. And much of the anti-Americanism is tied to the perception that the United States has pursued its "war on terror" in an arrogant, unilateral fashion, defying the very values we once championed.
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The Bush Administration just doesn't get it. Its National Defense Strategy, published by the Pentagon, warns that "our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."
The proposition that judicial processes and international accountability -- the very essence of the rule of law -- are to be dismissed as a strategy of the weak, aligned with terrorism itself, makes clear that the Administration has come to view the rule of law as an obstacle, not an asset, in its effort to protect us from terrorist attack.
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Security rests not on exceptionalism and double standards but on a commitment to fairness, justice and the rule of law. The rule of law in no way precludes a state from defending itself from terrorists but requires that it do so within constraints. And properly understood, those constraints are assets, not obstacles.
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