Suspension of Due Process

Several recent cases have illustrated how wrong it is to suspend due process.  There is never a crime so heinous, or a case so cut and dried, that due process can be suspended.  These cases include the Bradley Manning/Wikileaks case, the Adnan Farhan Abdul Latif  Guantanamo case, and the Indian gang rape case.

In only one of these cases is there clear evidence that a crime had been committed by the person being held.  In that case, the evidence is so clear, and the outrage so widespread, that few lawyers wanted to take the case for fear of social repercussions.  This an outrage almost as bad as the original crime.   The lawyer is not responsible for the crime; they are responsible for seeing that due process is properly observed.  Being associated with a repugnant criminal should reflect on the lawyer as heroic.  In India, it may take some education to get this point across, but even in this country, political ads attack defense lawyers for playing their role in due process.

Manning may have committed a crime, or he may have merely committed an act of whistleblowing, but it seems clear that holding him in solitary confinement for many months or even years, is much more severe than any crime that Manning himself may have committed.  The harm he may have caused is mainly that carefully maintained secret relationships between the state department and some fairly bad actors came to light.  This may make it harder to cultivate such relationships in the future.  But Assange and the newspapers he was working with had made it clear that he would cooperate with the state department to minimize this.  Instead, the state department refused, leaving Assange no recourse but go through with his release.  The first murders committed by the Apache in 2007 were a clear case of the Fog of War.  The helicopter gunners saw a camera with a big lens and mistook it for an RPG.  Through careful review of the video, there appeared to be at most two guns, probably AK-47s, in the group, and it's clear in hindsight that these were there to protect the photographers in an area that had recently been a hot battle.  This was terrible and should have been used to teach the pilots and gunners to be more careful.  But the subsequent shooting of the van (containing two children) attempting to rescue victims was a war crime.   Instead, the messengers, Manning and Assange, have been treated as criminals.  Manning has not had anything even resembling due process.  The guys who laughed when they killed photographers and children haven't either.

The criminal justice system is imperfect.  Thousands of innocent have been wrongly punished and millions of guilty have not been.  Trials often become media circuses.  That the system is imperfect is not a reason to ignore it.  It is a reason to keep trying to make it better.