In my blog post of May 27th, entitled The Rule Of Law: Fair Or Foul, I focused on two of the World Justice Project’s four elements that form a working definition of the Rule Of Law, namely: Accountability and Even Enforcement. In that post, as well as several prior ones, I have stressed that the Rule of Law founds our society, and that in turn, trust founds the Rule, and Accountability and Even Enforcement found trust.
Yesterday, in The New York Times I read that two weeks ago four members of the British Parliament (two from the Labour Party and two from the Conservative Party) had traveled to Washington D.C. to argue for the immediate release of Shaker Aamer, a detainee at Guantanamo Bay Prison.
Mr. Aamer has been in American custody since he was apprehended in Afghanistan in 2001 where he was doing charity work. And after a stay in Bagram Prison, where he was tortured, he was transferred to Guantanamo in February, 2002, where he has remained for thirteen years without ever having been charged with any crime.
In our Criminal Justice System, the law requires that when a person is arrested, that he appear before a judge in court within a specified time period, usually 48 hours, and learn the charges against him. Under the Patriot Act, an enemy combatant has no such rights, and while I understand that in order to combat terrorism, those charged with the responsibility of doing so must be given some extra leeway, that flexibility to gather evidence and formulate a case should still be consistent with the concept of due process. Not being a terrorism expert, I’m not sure of what the time period for filing charges should be. However, I am sure that the Rule of Law requires the application of the principle of reasonableness, and that indefinite unequivocally fails to meet this test. Our federal government has never explained why, to keep us safe from terrorists, that if they suspect a person of being connected to terrorism, they cannot gather enough evidence to charge that person with a crime within a reasonable period of time.
So: Accountability score: Zero, as in none.
And to make matters worse, in 2007, during the Bush Administration, Mr. Aamer was cleared for release, but remained incarcerated. And in 2010, under President Obama he was again cleared for release after six agencies, including the CIA, FBI, and the Departments of State and Defense unanimously concurred, but remained in prison. And even after England’s Prime Minister, David Cameron, while visiting President Obama earlier this year, asked for his release and President Obama promised to pursue the matter, Mr. Aamer still remains in Guantanamo.
Why? There may be some security issues, is what the four members of Parliament were told. After 13 years, without a single charge being made against Mr. Aamer? When he’s been cleared for release twice? Utterly unconscionable! is the only term that comes to mind to describe the actions of all three branches of our federal government.
And a serious blow to the essential element of trust, to boot. For if government officials at the highest levels are blatantly unaccountable, why should we trust the Rule of Law?
But it’s only one case, runs the counter-argument. Well, stop and consider that the same Patriot Act that has resulted in Mr. Aamer’s tragic situation also applies to you and me, so just pray that some official in our security apparatus doesn’t designate one of us as an enemy combatant.
For an encore, this morning’s New York Times reported that Kalief Browder, a young man who was held at the Rikers Island Jail in New York City for three years without ever being charged with a crime, committed suicide three years after his release. It appears that Kalief was unable to recover from repeated beatings by correction officers and fellow inmates, and the two years he spent in solitary confinement after refusing several offers from prosecutors to take a plea deal. His mother reported that while Kalief did obtain his GED and started community college after his release, he was never able to recover from the years he spent locked alone in his cell for 23 hours a day and suffered a steady deterioration of his mental health.
Where was Kalief’s Public Defender, and why was he not arraigned in accordance with New York state law within 48 to 72 hours? And how can that misfeasance swell to 3 years? And who is responsible for this tragic miscarriage of justice? No answers to any of these questions exist in the article, and I was unable to discover any by researching the issue on the internet. New York’s mayor, DeBlasio, has called for a major reform of Rikers, and in a statement, said: “Kalief’s story helped inspire our efforts.”
Accountability score: Zero, as in none. And another serious blow to the element of trust, so essential to the Rule of Law.
And to demonstrate how trust is being replaced by distrust in the minds and hearts of many of our fellow citizens, this morning’s New York Times also reported that in Cleveland, “Community leaders, distrustful of the Criminal Justice System, said Monday that they would not wait for prosecutors to decide whether to file charges against the police officers involved in the fatal shooting of 12-year-old Tamir Rice last year.” Ohio is one of a few states that have a statute that allow residents to request an arrest without approval of the police or prosecutors. And not trusting the prosecutors in Cleveland, who work closely with the police, and who will proceed by the secret grand jury process, community leaders have instead chosen to directly petition a judge, so as to obtain an open hearing with evidence provided by all sides involved.
Who can blame them, after so many unarmed African-Americans have been killed by police, and with rare exception were the incidents fairly and openly investigated?
For a significant portion of our fellow citizens, and in particular people of color and the poor, events, from Ferguson, to Cleveland, to Detroit, to North Charleston have seriously eroded the trust that is essential for the Rule of Law to continue governing our society. As my novel, Gideon’s Children, illustrated, the growing conversation about the crucial need to fix the serious problems in all phases of our Criminal Justice System needs to grow larger and louder now! Please let your municipal, state, and federal representatives know that reform should be at the top of their list of priorities. Nothing is more important than ensuring that the Rule of Law continues to found our society and all of the citizens who comprise it!