The decay of US courts

28 Sep, 2010

Syed Mujahid Kamran

One of the keenest observers of the contemporary US political landscape, Michael Ruppert, wrote in 2005: "False flag terror attacks, a fake war on terrorism, routine political murders, stolen elections, and Republican traffic in pedophilia remain causes for outrage and defiance, but they can no longer be useful avenues to justice: the legal system is broken. It is broken for reasons greater than what used to be called corruption. And it cannot be fixed when a world war and unprecedented economic and ecological collapse are smashing down every wall between humanity and the unthinkable." The recent Aafia judgment by a US court has revealed the deep truth embodied in the above quote.

In October 2006, the US Congress passed the Military Commissions Act, called Torture Authorisation Act by its critics. As Stephen Lendman states: "It gives the administration extraordinary unconstitutional powers to detain, interrogate and prosecute alleged terror suspects and anyone thought to be their supporters. The law lets the President designate anyone in the world an 'unlawful enemy combatant', without corroborating evidence, and order they be arrested and incarcerated indefinitely in military prison outside the criminal justice system without habeas and without due process rights. US citizens are not exempted. We're all 'enemy combatants' under this law. Anyone charged under it loses all constitutionally protected rights and can be subjected to cruel and unusual punishment, including torture." The US constitution is one of the greatest documents of human history. It places human rights and individual liberties on the highest pedestal. The founding fathers of the US - the architects of the constitution - always feared that the US governments may, one day, turn hostile to the freedoms allowed to the citizenry by the constitution. The American constitution does not permit detention without cause - the famous writ of habeas corpus is enshrined in it. For example, during the American Civil War, a supporter of the southern states named Merryman was arrested in May 1861. Roger Tanney, the Chief Justice of the US Supreme Court (SC) at the time, ordered that charges be brought up against Merryman, failing which he must be set free, since to hold him without charges would be unconstitutional.

Despite being a lawyer by profession, Abraham Lincoln suspended the writ of habeas corpus through a Presidential order, and ordered his general to arrest Merryman. When General Caldwell expressed his reservations on the matter, Lincoln left it to Caldwell's discretion. General Caldwell decided not to arrest Merryman and Lincoln too did not insist. After Lincoln's death, the court passed a historic judgement on the issue of the writ of habeas corpus: "The US constitution is a law for rulers and people equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." This is the famous judgment that was given on Ex parte Milligan, 7.1 US 2 (1866). Such a judgment was passed when the US was a country preparing for a role of leadership in world affairs and was studded with courts, judges, generals and presidents of great stature. But now it is a thing of the past.

However, the decline of integrity in the US no longer afflicts the so-called elected representatives and media; it has touched the courts too and is spreading fast. In recent years, US courts have given decisions that remind one of Third World courts. In particular, cases where wrongdoing on part of the US government or its agencies is involved, the courts seem to go with the government. One of the crutches held by the US authorities goes by the name of State Secrets Privilege. Instead of being forthright that wrongdoing has been committed, the US courts have permitted wrongdoing by taking refuge behind this "Privilege". This attitude of the courts has strengthened the tendency of the US government to commit wrongdoing and has emboldened it to the extent of disregarding the constitution.

One example of the foregoing is the case of Khalid Al-Masri. He is a German citizen of Lebanese origin and he was picked up in 2003, while vacationing in Macedonia on the grounds that his namesake was an important Al-Qaeda member. He was handed over to the US authorities in 2004, which not only kept him in confinement, but also abused him physically. He was chained eagle-spread to the floor of a plane and transported to Afghanistan where he was transferred to a torture cell controlled by the US. Al-Masri was not allowed access to a lawyer for two years! Nor was he permitted to talk to anyone. When Al-Masri went on hunger strike, the US authorities panicked - after all he was a German citizen and the Americans knew he was innocent. He was taken to Albania and released on an abandoned road!

In December 2005, Al-Masri filed a case in a US district court against Homeland Security Chief George Tenet. However, in May 2006 the district judge accepted the stance of the US government that if the case were allowed to continue and judicial investigations carried out, they might lead to the revelation of state secrets. What are "state secrets" here? Abduction of innocent people, torturing them, raping women, shoving sticks up the recta of men, preventing access to lawyers for years, preventing access to families for years, transporting them illegally from one country to another, from one torture cell to another hell hole? Are these the state secrets that will threaten USA's security once brought to light? So in March 2007, even the court rejected Al-Masri's appeal. In October 2007, it drove the last nail in the coffin of the rule of law - it simply refused to hear Al-Masri's case without giving any remarks! This attitude of the SC dealt a severe blow to its prestige in judicial and legal circles worldwide. And now the Aafia case has utterly destroyed the image of US courts. But it seems that the US political and judicial leadership does not really care anymore about what the world thinks of them. In a way, it has refused to touch the US government even when it indulges in outright torture, and blatant violation of human rights. Does that remind one of George Orwell?

Colonel Stephen Abraham has strongly criticised the manner in which prisoners at Guantanamo are being prosecuted. In a written affidavit, he has stated that whenever the results of prosecution are not to the liking of the officers, they get upset and tell those carrying out the prosecution that their conclusions are wrong! The superior officers seem to think that if we conclude that a prisoner at Guantanamo is innocent, then we have surely made a mistake somewhere. Therefore, instead of setting him free we must reinvestigate and prosecute anew.

Unfortunately, this is the height of injustice. Those who criticised the Soviet concentration camps have, today, interned innocent people indefinitely. Indeed, the US ruling cabal has revived memories of Stalin. It has been pointed out by writers and researchers that the US held twice as many prisoners at Bagram at one time as in Guantanamo. These prisoners were routinely tortured. And Aafia was one of them. She became known as the "Gray Lady" of Bagram because of her screams that the prisoners heard over the "years". She was raped repeatedly in Bagram over a four year period. As Lendman puts it in December 2008: "Many prisoners are held secretly, have been there for years, has no access to lawyers, or any knowledge of the allegations against them. Most, perhaps all, are innocent victims and guilty only of being Muslims at the wrong time in the wrong place. Other prisoners were beaten, chained, hung from the ceiling by their wrists, and subjected to numerous other tortures and indignities - for months or years. In some cases so horrifically they died." Lendman also quotes British journalist Yvonne Ridley: "There are many Muslim women in the captivity of American forces and if (people remain) silent, (they'll) lose their sisters forever."

The court has allowed the US government to wield its dagger under the cloak of state security. The court seems oblivious to the fact that the US rulers, drunk with power, stand completely naked before the world. They have not even bothered to cover themselves with a fig leaf! With the Aafia case, the US judiciary too has joined its rulers.

The writer is the vice chancellor of the University of the Punjab.

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