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Tuesday, September 19, 2006

Judge, Jury, and Torturer - by James Carroll

TRUST US. You're guilty. We're going to execute you, but we can't tell you why." That is how Senator Lindsey Graham, Republican of South Carolina, characterized the Bush administration's recent proposal for a draconian new trial system to deal with accused terrorists. The plan includes a reinterpretation of prisoner protections guaranteed by the Geneva Conventions. Graham was joined in opposition last week by other Republicans, including Colin Powell. Remarkably , lawyers in the Pentagon also raised objections. But the White House argument is straightforward: terrorists are such a mortal threat that established due process must be suspended. In particular, the classified secrets of anti terrorist operations must be so closely held that the most basic pillar of jurisprudence -- the accused's right to know and respond to evidence -- must be discarded. The legislation was drafted by Franz Kafka.

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The Congress will decide how to respond to administration proposals, and courts will review whatever system is enacted. All of this unfolds in the context, first, of the Supreme Court's decision in June that Bush-sponsored terrorist tribunals, centered in Guantanamo, violate international law and the Constitution, and, second, of the administration's admission two weeks ago that the CIA has been running a secret and extrajudicial prison system abroad, without any pretense of legal procedure. Nothing inhibits interrogation methods from approaching torture. Not exactly grounds for trust.

In the United States, there has been only vague unease about such revelations. It does not seem right to suspend hallowed legal protections, but questions about such Bush policies dating back to early days of the war on terrorism have not risen to the level of vigorous resistance, much less indignation. That's why the Supreme Court ruling was so surprising. Regarding the new White House proposals, The New York Times reported that, even with vociferous Republican objection, responses from Democrats were muted. They don't want to seem friendly to terrorists.

What reservations are expressed have less to do with innate rights of the accused than with possible repercussions when enemies apply such standards to captured US soldiers. Last week, 27 retired military leaders warned Congress, ``If degradation, humiliation, physical, and mental brutalization of prisoners is decriminalized" then US soldiers will suffer similarly.

But the fabric of law is spun from a single thread and when the US government deems a few individuals to be less worthy of full protections against the abuse of power , everyone is threatened.

That's because the procedures of law -- the requirement, in this example, that the accused be shown the evidence -- protect not only the individual but the system itself. To say that justice must be administered blindly is to forbid favoritism toward the privileged, yes, but it is also to prevent prejudice toward the despised or dangerous.

Justice is measured in every society by how the worst malefactors are treated -- the worst not only in culpability, but in capacity for general harm. The best way to combat terrorism is to wrap accused terrorists in the cloth of the law they would rip asunder. More important, to legalize the abuse of a class of prisoners is to prepare for the abuse of all.

In the novels and stories of Kafka, the guilt or innocence of the accused is not the issue. When hauled before the unknown accuser, without explanation of charges or evidence, Kafka's characters assume that they must have done something wrong. The surreal dislocation of the one imprisoned in the penal colony or the castle consists in solitude, vulnerability, ignorance. The anonymously oppressing power structure is Kafka's true subject, and it is characterized only by its radical unaccountability. ``Trust us. You're guilty. We're going to execute you, but we can't tell you why." The absolute power of the oppressor depends on the absolute ignorance of the oppressed.

Kafka died in 1924, but his work was recognized as a prophecy of the totalitarian nightmares of the rest of the 20th century. Who would have thought his images would resonate again? And not this time in Berlin or Prague. To watch the Bush administration cavalierly dismantle the most basic structures of justice is to feel like the man in ``Metamorphosis" who discovers upon awakening that, in the night, he has become a monstrous insect. But, in the United States today, instead of thinking of his body as the objection of gross mutation, he is thinking of his nation. Kafka's last novel was called ``Amerika."

James Carroll's column appears regularly in the Globe. His most recent book is "Crusade: Chronicles of an Unjust War."

© Copyright 2006 Boston Globe
Judge, Jury, and Torturer


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