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vendredi 23 décembre 2011

SELECTED BLOGS: OUT OF THE CROOKED TIMBER//Cognitive dissonance and detention without trial


Cognitive dissonance and detention without trial

Now that Obama has signalled that he will sign the National Defense Authorization Act, US citizens have no legal rights that can’t be over-ridden by miltary or presidential fiat. Anyone accused of being a terrorist linked to Al Qaeda can be arrested, shipped overseas and held indefinitely without trial, or alternatively tried by military commissions.[1] And, if arrest isn’t feasible or convenient then (at least outside the US), they can be hunted down and assassinated, with or without warning.
On the face of it, that makes the US a scary place to live. But, as a matter of everyday reality, most Americans aren’t scared at all.[2] Should they be? 
There is a problem of cognitive dissonance here. The powers claimed by the Bush and Obama Administrations have only been used against US citizens on a handful of occasions and always against people who were, at least, supporters of Islamist terror groups. As far as everyday experience is concerned, the ratification of those powers by Congress makes no difference.

Is this situation stable, or is the US on a slippery slope? If the law remains unchanged, expansion of its scope is virtually inevitable. The Republicans have long demanded the end of ordinary criminal trials for those accused of involvement in Islamist terrorism and, sooner or later, they will be in a position to enforce that demand. As with Guantanamo Bay, that’s a step that will prove virtually impossible to reverse.

As Glenn Greenwald has pointed out, the system as applied so far has a multi-tiered approach to a guaranteed outcome. If the evidence against a suspect is adequate and legally admissible suspects, can be tried and convicted in civilian courts. If it’s dubious but enough to pass muster in a military tribunal they can be tried and convicted there. If there’s no admissible evidence at all, they can can be held without trial. Whichever route is chosen, suspects, once arrested, need never be released.

The next steps would probably involve:

* removing (or reading down to insignificance) the requirement for a link to the 2001 attacks, and using the detention power for broader groups that might be classed as terrorist. It’s easy to imagine the right using this against leftwing protest groups. On the other hand, once the new laws are fully accepted, it’s worth observing that there are quite a few actual terrorists on the political right, and plenty more people who might be accused of giving them material . A particularly alarming possibility, since it would massively expand the potential target group is the application of the law to alleged ‘narcoterrorists’, some of whom are supposedly linked to Hezbollar.

* abandoning any pretense of adhering to rules of evidence, and allowing convictions based on hearsay, entrapment and so on. Existing practice has already gone a fair way in this direction

After that, the road is open to the unfettered use of these powers. Even if the numbers actually detained were relatively modest (in the thousands, say) the threat would be available in all sorts of contexts, going well beyond law enforcement. 

The process would presumably move more slowly if the Dems retained power. On the other hand, the longer the laws remain on the books with bipartisan support, the harder it will be to challenge their inevitable use.

Is there any prospect of a reversal of this trend? Based on past experience, this won’t happen simply because of principled objections, so any reaction will only come when these powers are actually abused. And given the abuses to which the US public (and even more the US elite) are already inured, it would take something quite extreme – either mass detention of people who are clearly innocent or the use of the law against members of the elite, leading the rest to take alarm.

Perhaps I’m being overdramatic here. There have, after all, only been a handful of cases where these powers have been asserted, and I don’t detect a lot of enthusiasm for a police state among ordinary Americans. So, anyone who would like to cheer up my festivities is welcome to show me I’m wrong about this.

fn1. I’m aware that the part of the legislation making detention mandatory includes anexemption for US citizens, and that the part relating to Al Qaeda linked terrorism purports merely to endorse the status quo, which is left undefined. But the fact that Congress rejected amendments that would have explicitly excluded US citizens, and that the Bush Administration succeeded in holding US citizens in military custody for years make it quite unlikely that the courts would intervene to free alleged terrorists from military detention claimed as necessary by the President.
fn2. As a  now-departed visiting non-citizen  the change of rules makes no difference to me – the US has long claimed an absolute right to seize or kill anyone, other than a US citizen, anywhere in the world, and US courts have repeatedly denied redress to those claiming wrongful detention and torture following seizure in the US or elsewhere.  That didn’t stop me coming to the US, nor has the loss of any marginal protection I might gain from being in the US deterred me from going home. And, while in the US, I haven’t worried about what I said or who I talked to, despite the absence of any legal protections. So, I have just the same cognitive dissonance as everyone else.

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