This question was too good to put in the comments. Jack wrote in with a comment regarding the previous post: "Your blog definitely makes one think. Playing Devil's advocate, ever since OJ's trial I do not have a lot of confidence in our civilian criminal justice system either. With that in mind, what would you consider a fair trial?"
Let me start by saying that's about the best compliment I've had. I like to hope that people will read this and think about things and not just give knee-jerk reactions. While it may not change their opinion, maybe it will at least give them something to expand their understanding of the situation.
So what would constitute a fair trial for the prisoners at Gitmo and other military prisons? Obviously the horrendous and public nature of the charges and crime means no one could possibly give these people an impartial trial. Both the military and civilian juries would be biased and, in either case, are not really a jury of peers. My solution is this: leave the decision to the professionals. There are people who, in theory, must practice being as unbiased as possible all day, who understand the law better than nearly anyone else, and who are well versed in logic, rhetoric, and the rules of evidence. They are called judges. In this case, I suggest we dispense with a jury altogether and turn over the decision to a panel of judges.
These judges would be pulled from both civilian and military courts. Because of the nature of the crime and the nature of the evidence ("top secret" and what-not) there should be a good number of judges (say 8-10). An even number of judges guarantees equal representation of civil and military courts. Judges would be chosen from a pool with experience in cases involving sensitive information. The actual selection would be at random from this pool to ensure that the panel is not packed with government cronies or friends of the defense or prosecution.
A majority vote would be required for conviction. In the event of a tied vote, an acquittal would be declared and a new panel of judges would be selected. Two acquittals would be equivalent to a not-guilty vote, since that would mean there is not enough evidence to reach a full conviction in a reasonable amount of time.
The defendant's lawyers should have access to all of the evidence against the defendant. The defense should also be allowed to question the evidence as to its sources, methods of obtainment, accuracy, and verifiability. Without these provision for the defense, the trial is a joke and a mockery with no real interest in justice, only conviction and punishment. Finally, to ensure fairness, the maximum amount of evidence possible should be made public. This way, the public can have an informed view of the proceedings and can reach reasonable conclusions rather than reading rampant speculation and fueling the gossip mill. With these protections in place, I think that's about the most equitable situation we can offer. We must remember that these people are innocent until we can prove they are guilty and we must not let the emotional need for punishment and revenge over-rule our ethical responsibility to provide a fair day in court even if the verdict is not-guilty.
Regarding the OJ trial, my opinion is that the whole thing was injustice of the highest order. Based on the evidence I saw, the jury reached a verdict that was incomprehensible to those of us paying attention. That being said, the point of the jury system is to allow the public to participate in the justice system, to weigh the evidence presented, and to decide whether the government (the judiciary in this case) has made a good case for punishment. In this instance they decided that reasonable doubt over-ruled the physical evidence. And as far as I am aware, there was no jury tampering or inappropriate behavior. So even though I hate the decision, the system worked exactly like it was supposed to. We can't be upset when the system does its job even if we don't agree with the outcome. There are horrific examples in the U.S. of guilty parties getting off and of innocent people getting punished. No system is perfect, but we do our best to avoid these types of outcomes. Be that as it may, that dude was guilty as fuck and until someone can bring better evidence to light than some racial slander, that's my side of the story.
A few closing remarks- the judicial system in this country has its problems, but I would have to say that overall it could be much, much worse. I think we have a pretty good system in place and I wouldn't want to be anywhere else for a trial. My biggest problems are the obvious inequalities regarding race. Black men are convicted more often, punished more harshly, and put on death row more frequently than white men. These are obvious biases in the system and need to be rectified immediately. But I also firmly believe that if we want other nations to adopt what we consider to be a fair, impartial, democratic system, we have to use that system on everyone. We can't treat our citizens with one system and have another for foreigners or "war criminals" that we believe have wronged us. If we do, we immediately lose our moral standing and become big fat hypocrites. Don't think the rest of world doesn't see that.
We are in a tough position. We use corporal punishment in cases like this. Much of the rest of the world doesn't. So if we convict these people and execute them, we may do ourselves even more harm in the international community. The call for blood may need to be tempered by the fact that we need the global community to believe we have provided a fair trial to those accused of these heinous acts. Otherwise, they will just cite this as another case of American unilateral action and hegemony.
Finally, I think that treating these people as "war criminals" only adds to their mystique, their martyrdom, and their symbolism to other terrorists. If we treated them as common criminals in civilian courts, much of their power could be thwarted. As of now, they are raised up as symbols of evil and given a prestige they most certainly don't deserve. We could make a strong statement by treating them as the thugs they are rather than reinforcing the idea that they are somehow more dangerous than other murderers. And, if it turns out that we have arrested and tried people that were not, in fact, connected with the attacks (which we most probably have given the rather indiscriminate nature in which they were sometimes rounded up) then we need to own up to that and show the world that we will not incarcerate innocent people. We've already done irreparable damage by locking these people away for years with no formal charges, torturing them, and then denying we were doing it. We need to take back the moral high ground, return the innocent to their families, punish the perpetrators, and show the world that our justice system works. Lead by example, not by fiat.
Friday, July 25, 2008
And now...the rest of the story
The first alleged criminal to go on trial for "war crimes" is bin Laden's chauffeur. There has been a lot of talk about how a war crimes trial in a military court is different than a trial in a normal civilian court. The popular answer among government mouthpieces is "there would really be no noticeable difference." Now let's examine the reality of the situation.
For starters, in the real world a defendant is tried by a jury of his or her peers. In this case, that jury will consist exclusively of military personnel. How, exactly, is that a jury of his peers? A more disturbing idea is that these military people have a terribly biased view of the situation. To be fair, no one in the U.S. (or probably the world) could possibly give any of these people a fair trial because of their own biases and the nature of the allegations. But this seems patently ridiculous that the service men and women who are involved in the war, who have been hammered day in and day out with messages of anti-terrorism, and who have friends that have been killed in "terrorist" acts are going to be the ones to judge him.
Next, in the real world, a defendant is considered innocent unless the evidence can prove he is not. Thus, the onus is on the prosecution to prove culpability. In this case it's exactly reversed. The onus has been put on the defendant to prove his innocence and the evidence is considered absolute, a priori truth. There is very little that the defending lawyers can do to question such evidence because it is already accepted as absolute and infallible. So we have implemented a guilty until proven innocent policy.
In a normal trial, the defendant has complete access to the evidence being used against him and the methods used to gather it. In this case, because of the "sensitive", "secret", or "national security" nature of the evidence, equal access to information is not necessarily guaranteed. This crap wouldn't fly in a civilian court and it shouldn't be allowed to fly here.
So don't let anyone fool you. These trials are very different than civilian trials. Right now the cards appear stacked in the government's favor. The one good thing so far is that the presiding judge has ruled that evidence gained by torture or coercion will not be allowed. This farce of a trial should be far more concerning to the general U.S. populace than it is. If we can do it to foreigners, how long is it before similar measures are used in the name of security on American citizens? I'm not saying it will become the method du jure for civilian courts, but abuse of government and judicial power inevitably turns on the citizens it was initially supposed to protect. History is full of examples and there is nothing that suggests this situation is any different. Bringing the perpetrators of murderous acts to justice is a laudable goal but not at the expense of our ethics. If our ethical behavior and sense of fair-play is consumed in the pursuit of actual or supposed justice, we only become the thing we seek to destroy. We become the terrorists. I wouldn't say we're quite there yet, but we're really pushing the boundaries and walking headlong into that blurry gray fog where the ends always justify the means.
For starters, in the real world a defendant is tried by a jury of his or her peers. In this case, that jury will consist exclusively of military personnel. How, exactly, is that a jury of his peers? A more disturbing idea is that these military people have a terribly biased view of the situation. To be fair, no one in the U.S. (or probably the world) could possibly give any of these people a fair trial because of their own biases and the nature of the allegations. But this seems patently ridiculous that the service men and women who are involved in the war, who have been hammered day in and day out with messages of anti-terrorism, and who have friends that have been killed in "terrorist" acts are going to be the ones to judge him.
Next, in the real world, a defendant is considered innocent unless the evidence can prove he is not. Thus, the onus is on the prosecution to prove culpability. In this case it's exactly reversed. The onus has been put on the defendant to prove his innocence and the evidence is considered absolute, a priori truth. There is very little that the defending lawyers can do to question such evidence because it is already accepted as absolute and infallible. So we have implemented a guilty until proven innocent policy.
In a normal trial, the defendant has complete access to the evidence being used against him and the methods used to gather it. In this case, because of the "sensitive", "secret", or "national security" nature of the evidence, equal access to information is not necessarily guaranteed. This crap wouldn't fly in a civilian court and it shouldn't be allowed to fly here.
So don't let anyone fool you. These trials are very different than civilian trials. Right now the cards appear stacked in the government's favor. The one good thing so far is that the presiding judge has ruled that evidence gained by torture or coercion will not be allowed. This farce of a trial should be far more concerning to the general U.S. populace than it is. If we can do it to foreigners, how long is it before similar measures are used in the name of security on American citizens? I'm not saying it will become the method du jure for civilian courts, but abuse of government and judicial power inevitably turns on the citizens it was initially supposed to protect. History is full of examples and there is nothing that suggests this situation is any different. Bringing the perpetrators of murderous acts to justice is a laudable goal but not at the expense of our ethics. If our ethical behavior and sense of fair-play is consumed in the pursuit of actual or supposed justice, we only become the thing we seek to destroy. We become the terrorists. I wouldn't say we're quite there yet, but we're really pushing the boundaries and walking headlong into that blurry gray fog where the ends always justify the means.
Friday, July 18, 2008
"The only thing we have to fear...".....you know the rest
I don’t wake up every day and worry about immigrants speaking their native language or getting jobs in my country. I certainly don’t worry about terrorists blowing me up. And I definitely don’t worry about blacks or Muslims or Jews trying to take over the world. But judging by the reactions of American’s over the past few years and the rhetoric flying around now during the presidential race, you’d think I should be.
It must be awful to live in fear every day. To wake up and live every moment with the thought that someone different from you might be trying to live their life in a way that is different from yours. It must be a miserable existence. Something equivalent to an alcoholic that lives in a state of misery so long that it becomes normal. I’ll never understand it.
Ask them if they’re afraid and they’ll say no. But their actions, their reactions, speak differently. They support and vote for leaders that want to build an American Berlin wall. They promote war against entire faiths or nations for the actions of a fraction of a fraction of a minority of the people. They promote racism, protectionism, and neo-imperialism as solutions to assuage themselves of the responsibility of being open-minded, fair, and sympathetic. And all because, deep down, they are afraid. What they’re afraid of, exactly, they don’t know. Yet they cringe in corners- Democrat and Republican, male and female. Hate and fear are non-denominational and apolitical.
What they’re really afraid of is change and difference. They’re afraid of gays, immigrants, religions, politics, and ideas, not because these things are bad, but because they are different and don’t conform to the very narrow slit they view themselves through. And because they feel insecure and threatened they assume everyone else should feel that way.
If you have to live every day afraid that someone, merely by their presence or their values and beliefs, will take away the things you define yourself by, you must have very little faith in yourself or your symbols. If the only way for your philosophy to survive is to cut yourself off from what the rest of the world has to offer, you have implicitly said that your motives and symbols are too weak to stand up to outside influences.
I wake up afraid of needles, large insects, and heights, but never of other people and never of the thought that their culture or values somehow make my own less significant. If I did, I’d consider myself a coward.
It must be awful to live in fear every day. To wake up and live every moment with the thought that someone different from you might be trying to live their life in a way that is different from yours. It must be a miserable existence. Something equivalent to an alcoholic that lives in a state of misery so long that it becomes normal. I’ll never understand it.
Ask them if they’re afraid and they’ll say no. But their actions, their reactions, speak differently. They support and vote for leaders that want to build an American Berlin wall. They promote war against entire faiths or nations for the actions of a fraction of a fraction of a minority of the people. They promote racism, protectionism, and neo-imperialism as solutions to assuage themselves of the responsibility of being open-minded, fair, and sympathetic. And all because, deep down, they are afraid. What they’re afraid of, exactly, they don’t know. Yet they cringe in corners- Democrat and Republican, male and female. Hate and fear are non-denominational and apolitical.
What they’re really afraid of is change and difference. They’re afraid of gays, immigrants, religions, politics, and ideas, not because these things are bad, but because they are different and don’t conform to the very narrow slit they view themselves through. And because they feel insecure and threatened they assume everyone else should feel that way.
If you have to live every day afraid that someone, merely by their presence or their values and beliefs, will take away the things you define yourself by, you must have very little faith in yourself or your symbols. If the only way for your philosophy to survive is to cut yourself off from what the rest of the world has to offer, you have implicitly said that your motives and symbols are too weak to stand up to outside influences.
I wake up afraid of needles, large insects, and heights, but never of other people and never of the thought that their culture or values somehow make my own less significant. If I did, I’d consider myself a coward.
Wednesday, July 16, 2008
We never learn
Two of the more egregious examples:
Richard Nixon broke innumerable laws hiding under the umbrella of “national security.” The populace was understandably upset and went through a period of holding leadership more accountable and being more open. Ronald Reagan ran up a national deficit that should be a source of shame to America under the name of “national security.” Now we have another administration following the same patterns. Apparently neither us nor the politicians learned anything.
The victims of the Holocaust, before the “final solution”, were forced to carry travel papers, wear special symbols to make them stand out, and were restricted in their movement. Now, these people are carrying out the same acts against Palestinians. These people were victims of some of the worst genocide in history and here they are enacting the same policies and doing the same acts that led up that horror. Now, Italy is racially and ethnically targeting gypsies. I guess we didn’t learn anything from World War II or the events leading up to it.
Like greedy old women we just keep repeating stupidity until something stupid happens. And then we wonder why something stupid happened. Which only provides evidence for my theory that people don’t really learn, they repeat. For all of our idea of being “civilized” or “advanced” we’re really just taller, balder versions of Australopithecus with bombs instead of sticks.
Richard Nixon broke innumerable laws hiding under the umbrella of “national security.” The populace was understandably upset and went through a period of holding leadership more accountable and being more open. Ronald Reagan ran up a national deficit that should be a source of shame to America under the name of “national security.” Now we have another administration following the same patterns. Apparently neither us nor the politicians learned anything.
The victims of the Holocaust, before the “final solution”, were forced to carry travel papers, wear special symbols to make them stand out, and were restricted in their movement. Now, these people are carrying out the same acts against Palestinians. These people were victims of some of the worst genocide in history and here they are enacting the same policies and doing the same acts that led up that horror. Now, Italy is racially and ethnically targeting gypsies. I guess we didn’t learn anything from World War II or the events leading up to it.
Like greedy old women we just keep repeating stupidity until something stupid happens. And then we wonder why something stupid happened. Which only provides evidence for my theory that people don’t really learn, they repeat. For all of our idea of being “civilized” or “advanced” we’re really just taller, balder versions of Australopithecus with bombs instead of sticks.
Wednesday, July 9, 2008
Nobody likes an edcuated buyer
Unless you live under a rock, in a tree, or in some crazy guy’s love dungeon, you’ve probably heard of newly proposed regulations aimed at curbing some of the more abusive practices in the mortgage lending, credit card, cell phone, and internet service industries. And you’ve undoubtedly heard the same industries reply that burdensome regulations will stifle competition, increase prices, and harm consumers.
For those of you that believe in unfettered “competition”, let me provide a reality check. I’ll use the credit card industry as an example, but the principal applies to most industries. There are four credit card companies (you get bonus points if you can name them) so the average Joe has four options. Theoretically, the companies will compete amongst themselves to offer the lowest interest rates, the best incentive programs, and the lowest prices to woo consumers. The reality is that they all charge the same usurious interest rates (anywhere between 15-30% for most consumer cards), they all use the same questionable practices (dual-cycle billing, universal default, etc), and they all charge the same fees for late payments, overcharges, and the like. How, exactly, is this competition?
It’s not. When the four companies that control more than 90% of the market have the same pricing structure, fees, and practices, you have an oligopoly. And history, as well as present day business practices, shows that oligopolies abuse their customers unless prevented by law or regulation (and oftentimes even then).
“Just stop using them and go to a different company” the anti-regulation crowd will say. But like I just said, there are no other options. You get to pick from four companies with the same practices wrapped in different names. “Deregulation increases competition” they say while completely ignoring the fact that study after study after study has shown deregulation nearly always leads to HIGHER prices and LESS competition (just look at the cable industry, the phone industry, the major ISPs, and the electric industry in California) which is always BAD for consumers.
Remember- capitalism is not a panacea. It’s an idea. And like all ideas it is ripe for abuse. Regulations are boundaries for capitalism. They are not the end of capitalism. Boundaries ensure a well defined, level playing field. And that’s good for both producers and consumers.
If you own a hardware store and there are 10 other hardware stores to go to, consumers can make a choice and shop those stores that treat them fairly. When you have only two choices for your cable provider and both offer exactly the same prices and the exact same shoddy service, capitalism has failed. It’s time to stop whining about regulation and instead look at it as a tool to maintain fairness between consumers and businesses and between businesses in the same industry. If we could trust profit-seekers to act ethically and in the interest of both themselves and their customer, regulation would be unnecessary. But again, history and current practice both show this is not the case. History and current practice also show that self regulation is a farce. Until people can act ethically when money is involved or until we develop a system that is abuse-proof, regulation should continue to be an important part of capitalism.
Suck on that Comcast, AT&T, and Countrywide.
For those of you that believe in unfettered “competition”, let me provide a reality check. I’ll use the credit card industry as an example, but the principal applies to most industries. There are four credit card companies (you get bonus points if you can name them) so the average Joe has four options. Theoretically, the companies will compete amongst themselves to offer the lowest interest rates, the best incentive programs, and the lowest prices to woo consumers. The reality is that they all charge the same usurious interest rates (anywhere between 15-30% for most consumer cards), they all use the same questionable practices (dual-cycle billing, universal default, etc), and they all charge the same fees for late payments, overcharges, and the like. How, exactly, is this competition?
It’s not. When the four companies that control more than 90% of the market have the same pricing structure, fees, and practices, you have an oligopoly. And history, as well as present day business practices, shows that oligopolies abuse their customers unless prevented by law or regulation (and oftentimes even then).
“Just stop using them and go to a different company” the anti-regulation crowd will say. But like I just said, there are no other options. You get to pick from four companies with the same practices wrapped in different names. “Deregulation increases competition” they say while completely ignoring the fact that study after study after study has shown deregulation nearly always leads to HIGHER prices and LESS competition (just look at the cable industry, the phone industry, the major ISPs, and the electric industry in California) which is always BAD for consumers.
Remember- capitalism is not a panacea. It’s an idea. And like all ideas it is ripe for abuse. Regulations are boundaries for capitalism. They are not the end of capitalism. Boundaries ensure a well defined, level playing field. And that’s good for both producers and consumers.
If you own a hardware store and there are 10 other hardware stores to go to, consumers can make a choice and shop those stores that treat them fairly. When you have only two choices for your cable provider and both offer exactly the same prices and the exact same shoddy service, capitalism has failed. It’s time to stop whining about regulation and instead look at it as a tool to maintain fairness between consumers and businesses and between businesses in the same industry. If we could trust profit-seekers to act ethically and in the interest of both themselves and their customer, regulation would be unnecessary. But again, history and current practice both show this is not the case. History and current practice also show that self regulation is a farce. Until people can act ethically when money is involved or until we develop a system that is abuse-proof, regulation should continue to be an important part of capitalism.
Suck on that Comcast, AT&T, and Countrywide.
Tuesday, July 1, 2008
Lying will get you places
I was going to write a diatribe about why people like to complain about the U.S. being a welfare state when they don’t even have a basic understanding of what that means, but this is much better.
As my father is fond of saying, “if you don’t start no shit, there won’t be no shit.”
A Texas man (you know it’s gonna be good) was cleared of all charges after killing two men who were allegedly burglarizing his next door neighbor. You can read the story here. I’ll give you a minute.
Notice anything funny about that story? For starters, he shot them in the back. IN THE BACK! Only in Texas would shooting someone in the back be considered self defense. What kind of coward shoots two people in the back and then claims they were trying to harm him? Next, the shooter claimed he “didn’t want to do it” immediately after telling the 911 dispatcher that he was going to shoot them. Did the judge or jury not notice the bald faced lie? The story doesn’t mention whether the burglars were armed. Based on the bullshit that already happened, I’d guess no. But if they were, was it equal force? If they had billy clubs and he shot them in the back, that meets the definition of excessive force. If we’re going to hold police accountable for excessive force, shouldn’t the public be held to the same standards? Finally, the attorney claimed the shooter was in fear for his life. Really? Because you started by being safely in your house, calling the proper authorities, and had a gun for protection in case they came into your home. There was no reasonable fear for your life until you stepped outside and started some shit. I hope you end up on the death row Texas seems so proud of for being a murderer, a douche-bag, and a big fat liar.
Let me say here I am totally fine with protecting yourself, your property, or other people. If someone broke into my house I would have no problem doing whatever is necessary to protect my family. But there is a huge difference between shooting two (possibly armed?) burglars in the back and facing someone in your own home. Once someone is running away, they are no longer a threat. I would also help my neighbors if they were in trouble, but once the culprits have left the house and are headed away, there is no immediate need to kill them.
The justice system in this country is truly fucked. It’s racist and elitist. It punishes blue collar crimes far harsher than white collar crimes. Lord knows I wouldn’t want to be anything but a white heterosexual male if I was in a courtroom. Don’t get me wrong…I think we have a great system in place and I would trust our system before many others. But there are far too many inequalities and all-out failures for us to begin trumpeting it as a “justice” system. Law, the judiciary, and justice are three separate things that are very difficult to bring together. Based on this horrific screw-up, it’s at least time to review our idea of justice and its practice in law. This was justice for gun-toting, trouble-starting white people. There was no justice for the victims or their families.
As my father is fond of saying, “if you don’t start no shit, there won’t be no shit.”
A Texas man (you know it’s gonna be good) was cleared of all charges after killing two men who were allegedly burglarizing his next door neighbor. You can read the story here. I’ll give you a minute.
Notice anything funny about that story? For starters, he shot them in the back. IN THE BACK! Only in Texas would shooting someone in the back be considered self defense. What kind of coward shoots two people in the back and then claims they were trying to harm him? Next, the shooter claimed he “didn’t want to do it” immediately after telling the 911 dispatcher that he was going to shoot them. Did the judge or jury not notice the bald faced lie? The story doesn’t mention whether the burglars were armed. Based on the bullshit that already happened, I’d guess no. But if they were, was it equal force? If they had billy clubs and he shot them in the back, that meets the definition of excessive force. If we’re going to hold police accountable for excessive force, shouldn’t the public be held to the same standards? Finally, the attorney claimed the shooter was in fear for his life. Really? Because you started by being safely in your house, calling the proper authorities, and had a gun for protection in case they came into your home. There was no reasonable fear for your life until you stepped outside and started some shit. I hope you end up on the death row Texas seems so proud of for being a murderer, a douche-bag, and a big fat liar.
Let me say here I am totally fine with protecting yourself, your property, or other people. If someone broke into my house I would have no problem doing whatever is necessary to protect my family. But there is a huge difference between shooting two (possibly armed?) burglars in the back and facing someone in your own home. Once someone is running away, they are no longer a threat. I would also help my neighbors if they were in trouble, but once the culprits have left the house and are headed away, there is no immediate need to kill them.
The justice system in this country is truly fucked. It’s racist and elitist. It punishes blue collar crimes far harsher than white collar crimes. Lord knows I wouldn’t want to be anything but a white heterosexual male if I was in a courtroom. Don’t get me wrong…I think we have a great system in place and I would trust our system before many others. But there are far too many inequalities and all-out failures for us to begin trumpeting it as a “justice” system. Law, the judiciary, and justice are three separate things that are very difficult to bring together. Based on this horrific screw-up, it’s at least time to review our idea of justice and its practice in law. This was justice for gun-toting, trouble-starting white people. There was no justice for the victims or their families.
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