The Rule of Law.

Jane Mayer, "The Trial: Eric Holder and the Battle Over Khalid Sheik Mohammed," in The New Yorker, February 15-22, 2010, at p. 52.
Jodi Kantor & Charlie Savage, "Getting the Message: After 9/11 Trial Plan, Holder Hones Political Ear," in The New York Times, February 15, 2010, at p. A1.

Reading this excellent article in The New Yorker, I pondered the lack of comprehension of basic Constitutional principles even at the highest levels of power in America. I am referring not to the U.S. Supreme Court which -- whether we agree or disagree with decisions -- is articulate and analytical about its judgments and interpretations of the Constitution. I am referring to the politicians in national as well as local office at this difficult moment in our history. Are they really as stupid as they sometimes appear to be?

Something as basic to our scheme of government and identity, as a people with a "prophetic mission" -- like torture or slavery -- is not a matter of political calculation or head counting, and must not become a popularity contest. Commitment to the rule of law, basic decency and transparency in judicial proceedings does not imply being "soft on terrorism."

Leadership cannot be about taking a poll before you decide where you stand on a matter of fundamental juridical principle. Unlike Mr. Alberto Gonzales, Eric Holder understands that "Attorney General of the United States of America" does not mean "Counsel to the President of the United States." ("Ronald Dworkin's Jurisprudence of Interpretation" and "Charles Fried and William Shakespeare on Interpretation.")

Mr. Holder is struggling to abide by basic principles of due process of law and international conventions as well as treaties, which are binding commitments made by the United States that are also incorporated into American statutory law. These commitments are hard-won achievements of previous U.S. administrations, as is UN Human Rights Law that is part of the UN Charter of which we are a signatory nation, founding member of the organization, and permanent member of the Security Council.

We cannot adopt an attitude to these legal obligations that implies that we will ignore them when they are inconvenient while expecting others to adhere to them at all times. ("U.S. Courts Must not Condone Torture.")

Some powerful Americans regard these ideas as sissy-like hesitation before the always fun task of kicking someone's ass. International legal obligations setting minimum standards of decency for "municipal" (i.e., domestic) legal systems are actually necessary provisions for governing the behavior of nations which we reject at our peril.

" ... 'This macho bravado -- that's the kind of thing that leads you into wars that should not be fought, that history is not kind to,' he said. 'The quest for justice, despite what your contemporaries might think, that's toughness. The ability to subject yourself to the kind of criticism I'm getting now, for something I think is right? That's tough.' ... " (Mayer, p. 63.)

Men and women died for those achievements that moved the world in a more civilized and legalistic direction in terms of acceptable practices and the resolution of conflicts among nations -- progress was made for decades -- creating a more humane and predictable international environment. ("What is Law?" and "A Commencement Address for Secretary of State Hillary Rodham-Clinton.")

Since the events in Bosnia, at least, these human achievements have been threatened and are now in danger of collapse. The "regime" of international law -- I believe that this includes the International Criminal Court which does not "enjoy" U.S. participation -- is one of the signs of hope emerging in the twentieth century. For a while it was possible to believe that legality and civilized discourse might replace murder as a means of resolving international disputes and that certain conduct, after the Holocaust, would no longer be tolerated among civilized human beings.

We have undermined this precious inheritance through the cynical rationalizations of torture in legal memoranda and judicial opinions that are transparent falsehoods and absurdities meant to create a smoke screen for American indulgence in crimes against humanity. We must be better than the Abu Ghraib and Guantanamo scandal has depicted us to be before the eyes of the world.

Similarly, an American jurisdiction's willing embrace of a cover up and obfuscation, lies and stonewalling techniques in response to accusations of rape, theft, kidnapping, breaches of fiduciary relations, censorship, suppressions of speech, cybercrime, obstructions of justice and torture as well as much worse speaks volumes about the collapse of our national moral ethos. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "What is it like to be tortured?") Xanadu? Equinix? What's next?

Mr. Holder is faulted for lacking a "political feel" for Washington's shifting alliances and moods. Mr. Holder must be, first and foremost, a law enforcement officer (everything that Ms. Milgram in New Jersey was not!), whose primary concern is to enforce the laws in accordance with the Constitution -- all of the laws, including inconvenient laws. The prohibition on torture has special meaning for Mr. Holder, apparently, since ...

" ... Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture REQUIRES the U.S. to investigate credible torture allegations. Holder felt that, as the top law enforcement officer in the U.S., he had to do something." (Mayer, p. 60, emphasis added.)

The recent disclosure by British intelligence, pursuant to a decision by UK courts, of the treatment to which Binyam Mohammed was subjected makes it clear that the U.S. is in violation of fundamental Human Rights Laws and its own organic documents in the treatment of Mr. Mohammed and hundreds of others, including some who have been tortured to death while in custody. ("Atheists in Disneyworld.")

I have learned through careful study of many sources that thousands have probably been tortured, secretly, within the United States by state and federal government agencies using C.I.A. torture techniques. Furthermore, I am sure that most of these victims will be shown to be African-American political radicals and revolutionaries. ("Freedom for Mumia Abu-Jamal" and "Mumia Abu-Jamal and the Unconstitutionality of the Death Penalty.")

"Washington was weighing another case involving the admissability of statements made freely, after a prisoner had been tortured. In a decision that signalled trouble for the viability of Clean Team type confessions, US District Court Judge Gladys Kessler ruled that the government must release another Guantanamo detainee, Binyam Mohammed, even though F.B.I. agents had elicited from him, without coercion, statements that they considered incriminating. Her reason was that interrogators in Morocco" -- at the request of Bush/Cheney's people, allegedly -- "had, among other abuses, cut the detainee's penis with a scalpel. After such mistreatment, Kessler found, it was impossible to regard later statements as free of taint." (Mayer, p. 62, emphasis added.)

Much worse has been done to detainees at America's many "concentration camps," which may be a good description of U.S. prisons, thanks to the widespread adoption of torture techniques formulated with the assistance of psychologists and other medical personnel. (Again: "Nihilists in Disneyworld" and "Foucault, Rose, Davis and Meanings of Prison.")

Obviously, detainees deprived of their liberty and tortured for years should be afforded meaningful trials to answer charges against them. Many of these torture victims have lost their sanity or suffered other permanent and grievous harm. Many of these men are held in error, authorities believe, and may be innocent of any terrorist actions. ("American Doctors and Torture" and "Psychological Torture in the American Legal System.")

The debate over appropriate forums for these trials and applicable laws is a distraction. Trials may be held in or near the facilities where the detainees are currently held. Jurors may be found among persons in the area, including Americans working in military bases or serving in the military who may be subject to jury duty in any case.

The Rules of Evidence in Federal Courts and Proceedings may be modified to fit these unique circumstances. The world may be permitted to witness the dignity and fairness of these proceedings. Much of the justified opprobrium generated by these "camps" housing detainees will be dissipated. The worst solution is to do nothing.

"We can't have a situation where political pressure forces the federal government to forgo criminal prosecution. That would mean the system is fundamentally broken." (Mayer, p. 63.)

The shameful spectacle provided by New Jersey's legal system that is VISIBLY devoured by political corruption should give us pause. New Jersey's disgusting criminality and corruption has led to the surrender of any legitimate basis for judging litigants' ethics or legality. It may take the federal government's intervention for New Jersey institutions to do what they are Constitutionally required to do. ("Law and Ethics in the Soprano State" and "Corrupt Law Firms, Senator Bob, and New Jersey Ethics," then "New Jersey's 'Ethical' Legal System.")

"Bill Martel, of Tufts said, 'When public fear coalesces, it generates forces that are almost uncontrollable by the political leadership.' ... " (Mayer, p. 63.)

Do we really wish to replace the American Constitution and International Human Rights Law with mob rule? I hope not.