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Tuesday, September 19, 2006
The annoyance of process
Ah, due process of law: that which requires certain steps be taken to ensure a minimum level of fairness in any proceeding. One form of due process is the grand jury. As they say on Law & Order, a district attorney could convince a grand jury to indict a ham sandwich. This is hyperbole: no ham sandwiches have even been indicted on Law & Order.
What does a grand jury or preliminary hearing do, considering that by far, the vast majority of suspects are bound over for trial? A couple of things, really. One, it's an opportunity to separate the clearly innocent from the possibly guilty. Two, it's a time where the state has to produce some evidence of possible guilt. Not much, mind you -- but even if a suspect committed a murder in front of a bus full of nuns, you still need to get one of those nuns on the stand and point a finger.
Process is important not just for the innocent, but for society as a whole. It's a window on the courts, so that we have faith that our laws are being executed properly. That justice is being served.
So what's the lesson here?
In 2002, Arar, a Syrian born Canadian, had the bad fortune to be suspected of al Qaeda ties by the Royal Canadian Mounted Police; the RCMP then asked U.S. authorities to put Arar and his wife on its al Qaeda watchlist.
So when Arar tried to change planes in New York in September of that year, U.S. authorities held him for questioning for 12 days, then transported him to Syria. Once there, he was beaten and kept in a dungeon for 10 months before he was released.
For two and a half years, a Canadian commission has been investigating Arar's case. And on Monday, they found that the RCMP's intelligence, which set the whole terrible chain of events in motion, was bunk.
The United States government is directly responsible for the torture of an innocent man because there was no process to determine evidence of guilt. He was placed on a watch list by the RCMP. From there, it was a very, very short trip to a Syrian prison cell.
Here's my novel idea for the day, with apologies to Lewis Carroll: trial first, sentence afterwards.
2 Comments:
How is it that conservatives, who always rail against the over reaching of governments, aren't completely up in arms about this sort of thing?
Because it can't happen to them?
I hesitate to suggest this, because I fear it will be taken the wrong way. The Gulag Archipelago documents the waves of inmates into Stalin's camps and describes the different ways in which party loyalists were caught up in the nets. Now, clearly -- unquestionably -- there is no real comparison between the dozens or hundreds of people facing extraordinary rendition on suspicion of terrorism and the millions and millions of victims of Stalin's purges. The lesson, though, is this: government is not perfect. Law enforcement is not perfect. Military forces are not perfect. Mistakes will be made in every system. We need to design systems that can recover from mistakes and relieve the innocent from punishment before the punishment is irreversible.
