Due Process

“After reviewing 517 of the Guantánamo detainees’ cases in depth, (the Seton Hall study) concluded that only 8 percent were alleged to have associated with Al Qaeda. Fifty-five percent were not alleged to have engaged in any hostile act against the United States at all, and the remainder were charged with dubious wrongdoing, including having tried to flee U.S. bombs. The overwhelming majority — all but 5 percent — had been captured by non-U.S. players, many of whom were bounty hunters.” – reported by Jane Mayer in her new book, ‘The Dark Side.’

 The presumption of guilt greatly reduces the need for legal protections.  If “everyone who matters” knows that a person is guilty, then all that is needed is a process that quickly disposes of the guilty.  For our comfort we must assume that those with the power to act on the certainty of guilt will not abuse that power by creating new crimes so as to remove impediments to their wishes.  Another concern is that there may be classes of persons who are considered not to matter (by those who do) and therefore if they are called guilty in this construction and disposed of, errors are of no practical consequence.  This seems to be the direction our “justice” system is going. 

Eight hundred years ago, at Runnymede, a step was taken to deal with the objections, of both power and epistemology, to the absolute power of Kings.  By recognizing that for action against a person to have the authority of a people and not just the authority of a King (and his various qualities of ambition, ignorance or madness) certain procedures needed to be followed; not just when there was recognized uncertainty, but every time.  There needed to be a process that insured that as much of what was true and real could enter into deliberation as possible.  Not that there was to be ‘justice for all’, but that there was a chance for justice for many, some reasonable part of the time.  Today the inconvenience of that process is challenging those who KNOW for sure who is guilty and to whom it doesn’t matter if a mistake is made.

I am amazed when I hear or read something like, “terrorists shouldn’t have the protections of a US citizen,” or “I am not doing anything wrong so it is fine that government is protecting me and mine by spying on and locking up bad people.”  So would the Barons be amazed, those who forced King John to sign the Magna Carta.  They knew, as we should know, it is only the protections of due process that prevent power from overwhelming us and making us its servant. 

We, in the US, have become so brainwashed by our education and our media that we think there is a “WE” here.  Somehow the Great Many assume a connection to the courage and wisdom of the Founders and therefore some special status making us immune to the political, economic and social foibles that plague and have plagued every other human collective in history.  A ‘due process’ that limits power is the palliative!  And “WE” are giving it up hand over fist. 

If the point of being a “winner” in the lottery of evolutionary existence is a big house and a hummer, then the time and effort needed to service due process with our attention and our thoughtful knowledge of our world is a waste; just leave that to others and “get your piece of the pie.”  (I think this is completely crazy, but characteristic of our time).  If, on the other hand, being an extant species has importance, then some rational and knowledgeable consideration of life and happiness is warranted.  But the Great We are so far from this simple reality that I am confident it will not happen.

This is the moment to remind of Margaret Mead’s, perhaps most, perceptive comment: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”  Though I would suggest that the scales are tipped rather far in favor of the present momentum.  

That being the case, in my view,  I suggest first taking care of yourself, not in the house and hummer sense, but by becoming a good human in the biological, evolutionary winner sense.  If enough of us do that successfully, we could be among those committed citizens who change things, and if not, we will have, at least (and no small thing), become more human in the only way that makes sense, to live with greater connection to our specieshood.  We can, as part of recovering and retaining our humanity, demand ‘due process’ for everyone.