Thursday, April 12, 2007

The Duke Lacrosse Case: An Idelogical Critique



The decision yesterday to drop all charges against the three Duke lacrosse players accused (at least initially) of raping a woman who was performing as an exotic dancer at a team party has brought up one of the ongoing questions in my mind about this case: why did this issue become politicized in the way it did?

In this post, I offer one take on this question through the use of ideological criticism.

Ideological rhetorical criticism focuses on the ways power is created, maintained, used, and abused in society, and the ways in which language is used in these processes.


Such critical approaches would include feminist, Marxist, and postcolonial criticism, although ideological criticism need not fall into any of these categories.

Part of the role of the ideological critic is to use criticism to advance a social or political cause through questioning and investigating how language is used by power structures to conceal and maintain themselves. In other words, ideological critics tend to wear their policial hearts on their sleeve.

Sounds good to me.

One of the odd things about the discourse surrounding the Duke Lacrosse case that struck me early on was the extent to which conservative public voices came to the defense of the accused. Over a year ago, Rush Limbaugh referred to the alleged victim as (wait for it) a “ho,” adding:

I just, I'm looking at this case down there at Duke, [caller], and it's --
there's some things about it, some inconsistencies. You've got some timeline
differentiations and matriculations and, and so forth.


Several months ago, Glenn Beck referred to what was happening to the accused as a “lynching without the rope.”

With the announcement that all charges were dropped, many conservative voices in the blogosphere spoke almost jubilantly about this as if it were a political victory, and added to this personal attacks on the alleged victim.

Posting a photo of the accuser, the blog “Insignificant Thoughts” opined:

Make sure you make note of the woman in the picture. You’ll never see her again.
She’ll never be questioned. She’ll never be criticized. We’ll never hear from
her again. She wasted more than a year with her lies and almost destroyed three
innocent lives. I seriously doubt anyone will press charges, and we’ll now be
subjected to numerous lectures on how this lying piece of garbage being called
out for what she is will stop women who really are victims of sexual assaults
from coming forward, the assumption being that if these three guys were
convicted, innocent or not, we’d be better off.

The sentiment was similar over at “SisterToldjah”:

I’m hoping that the three accused players will sue the state and/or Mike Nifong
for the hardships they’ve suffered since being falsely accused and made out to
be guilty by Nifong himself in the early days of the ‘investigation.’ Because
it’s my feeling that in this case, justice has not been served - for the real
victims here: the three lacrosse players, whose names were dragged through the
mud thanks to a lying stripper and a deceptive attorney who wanted to get
re-elected even if it meant ruining three young lives in the process.

And at “Betsy’s Page,” the accused were lauded for their character:

We often mouth aphorisms about learning from adversity, but these three young
men have really demonstrated that they have indeed done so. Sadly, I expect that
we won't see any such demonstration of character from all those in the media and
among those in academia, particularly at Duke University itself, for their rush to judgment. A distressingly large number of professors at the university acted as if the players were guilty simply because an accusation had been made and the accuser
was a poor black woman and they were white well-to-do athletes.


This is just a smattering of what the celebratory mood seen in much of the conservative prattle-sphere.


In and of itself, there’s nothing wrong with these sentiments. When the system works to correct a wrong—even (and perhaps especially) one it’s implicated in itself—that’s something we should celebrate, to say nothing of being thankful that our justice system puts the burden on the state to prove guilt. Yes, it’s a terrible thing when innocent people are unjustly accused, and it’s a wonderful thing when the system works and undoes that wrong.

So, what’s at issue? For me, it’s best summed up in another post from a popular conservative blog, “Mr. Minority”. MM poses the rhetorical question:

As Fred Barnes said on Brit Humes show last night, how many other times has this
type of action against the innocent happened?

Well, MM, a great many times. Is it common for this to happen to affluent, white, educated men? Probably not. But unjust accusations against the innocent? All the time, my man.

Exhibit A: Guantanamo Bay.

And this is where the issue becomes interesting from a rhetorical point of view. The conservative concern with the rights of the accused, outrage at false accusations, and glee at the dropping of unjust charges is a jarringly juxtaposed with the rhetoric from many of these same mouths when it comes to the legal system for all.

How many times are liberal groups (e.g., the ACLU) lambasted for “coddling criminals” or putting “the rights of the crook ahead of the rights of victims” for raising the same issues that conservatives did in the Duke case? When people were getting tortured at Abu Ghraib, many of them completely innocent of any crime, how often did conservatives attack anyone who voiced the least concern about issues of justice as “anti-American” or “terrorist sympathizers?”

In short, conservative concern for the rights of the accused seems oddly sporadic, depending more on who the accused is than the principle itself.

Now, the reverse can be said of liberal/progressives. Many on the left were quick to support the accuser in this case and bemoaned the culture of privilege that they felt led a gang of simian preppies to sexually maul this poor woman.

If we just wanted to throw stones, we could just say “a plague on both your houses” and move on. But there are some important issues here.

First, why would those on the left tend to side with the accused when they (as those on the right observe) profess a deep concern with the rights of individuals who are accused by the state of wrongdoing?

The answer, I think, lies in the fact that what underlies liberal concern with the rights of the accused is a broader concern with the right of individuals in the face of power structures. Such powers are most obviously seen in the government (given its unique ability to punish individual citizens legally), but it doesn’t end there. Among other power structures are the “holy trinity” of social forces: race, class, and gender inequalities.

Seen in this light, the liberal tendency to side with the accuser seems less out of character. Yes, as the accuser, she is on the side of the state and is invoking its might to punish individuals. But she herself exists at the business end of the hegemonic stick, as a poor woman of color.

A radical feminist critique of the situation might suggest that, regardless of what did or didn’t happen at that lacrosse party, the woman in question *had been* violated. Wasn’t it her position in society that drove her to trade on her sexuality for monetary survival? In terms of power relations, how different is what happened at Durham different from the plantation master using his chattel to satisfy his libidinal longings?

I wouldn’t go that far because it dehumanizes everyone involved, making them into allegorical characters. From what I’ve heard, the guys on the lacrosse team tended to be assholes, but that doesn’t mean they deserve to be saddled with the guilt of all oppressors past and present.

On the other hand, one needn’t use hyperbole to understand that the woman in this case is someone who stood in an inferior power relation to those whom she accused in many ways. If a hallmark of liberalism is concern for protecting the individual from unfair consequences of arbitrary power, then one can understand the tendency of those on the left to find their sympathies inclined toward the accuser.

There’s actually a fair amount of overlap between liberals and conservatives (at least those of a certain stripe) on this issue. In their more libertarian incarnations, conservatives look on government’s ability to victimize and control the individual with suspicion. As a result, you find alliances among those on the left and right on issues such as the Patriot Act, which both groups see as a potentially dangerous abuse of hegemonic power structures against the individual.

Where conservatives and liberals part ways is on the question of what constitutes a “hegemonic power structure.” Liberals see these at work in the machinations of racism, sexism, class, and unchecked corporate power. All are examples of unwarranted power held by some citizens at the expense of others.

Conservatives, on the other hand, largely dismiss these, or at least rate them as of little concern compared with governmental power. For example, they tend to see class as a side effect of the free market—a result of choices made by the individual. In a free market, the individual can make choices that allow her or him recreate their class identity. To suggest that an individual is victimized by such a power structure is anathema. Worse, it is an open challenge to what they see as a valid and legitimate method of dispersing power and wealth.

And this is why we have conservatives so clearly taking the side of the accused in this case. If the apparent liberal flip-flop in this particular instance is based on the deeper philosophical concerns liberals have about power relationships and the individual, so is the conservative flip-flop.

What I mean is that conservatives are generally supportive of existing power structures and suspicious of those who challenge their legitimacy. Just as liberals sided with the accuser largely because of the fact that she is, in many ways, at the low end of the power hierarchies, conservatives side with the accused largely because of the fact that they are, in many ways, at the top of the power hierarchies—power hierarchies that in general benefit conservatives, or which are at least philosophically endorsed by them.

So the accuser and accused *do* end up becoming allegorical characters in a socio-political drama in the rhetoric of both sides, with the accuser standing in for those forces thought to challenge or subvert what conservatives consider the natural and rightful order of things, while the accused represent those who’ve justly reached the top of that order through their (or their ancestors’) abilities.

Liberals see it the other way, with the accuser representing those who have long been silenced, abused, violated, and kept down through the self-interested exercise of power by those who don’t necessarily deserve it (e.g., rich white-boy lacrosse players).

Both ways of framing the situation risk jettisoning the specific facts in favor of ideology, and confusing the outcome of a specific case with a win or loss for their particular set of values.

But to put my own ideological cards on the table (and that comes with the territory of doing ideological criticism), if one is faced with a choice of a political philosophy that seeks to constantly question how and why those with power exercise it over those who don’t, and one that seeks to defend those power structures to such an extent that it only recognizes the dangers of such structures when they turn on themselves, I think the choice is clear.




Questions:

Why did Limbaugh get away with calling the accuser a “ho” over a year ago, but Imus, in a less venomous use of the term, got his hat handed to him?

Should the accuser’s name/photo be used openly by the press (as it has on the web already)? Does this depend on whether it can be proved that her accusations were knowingly false and malicious? (The authorities in Durham claim that it’s possible that she in fact believed the various versions she told them, despite the fact that they weren’t consistent).
What other reasons are there for the politicization of this issue along liberal/conservative lines? What am I missing or wrong about? What else can be said?

18 comments:

Mr Minority said...

Ted,
To me as a "conservative" it wasn't so much who the accused was and their social standing, it was that even the initial evidence was flimsy and I watched as the DA was pushing for an indictment for political reasons.

Personally I don't care what a person's social standing is, if they are guilty, they are guilty. In fact unfortunately rich people get easily jail time than poorer criminals, and that is not real justice.

Great post!

Mr Minority

Gaius Arbo said...

Rather than post a lengthy comment, I'll just direct you back to my answer to your comment.

Quilly_Mammoth said...

Your post seems to be mainly nonsense as the basis is flawed. I rarely listen to Rush but I can tell you that when I have heard him speaking of this he has always mentioned the power of the Prosecutor as being unchecked.

Follow that with the realization that many "conservatives" fear Big Government and it's power and what we see is that your construct is based on a fairyland perception of what conservatives are all about..let alone libertarians.

DWPittelli said...

Liberals see [“hegemonic power structure”] at work in the machinations of racism, sexism, class, and unchecked corporate power.

In this case, the hegemonic power structure was indeed "at work in the machinations of racism, sexism, class, and unchecked corporate power" -- it's just that the powerful race, sex, class and corporation here were black, female, proletariat and a university. Of course, the university is one of very few places in this country in which those race/sex/class groups clearly have more power than their opposites.

DWPittelli said...

Three other things distinguish the Duke and the Guantanamo cases: reality, law and history.

1) The Duke boys were all actually innocent. The Guantanamo "boys" are at least mostly guilty.

2) The railroading of criminal defendants is inappropriate. In contrast, the differing standards and methods used to distinguish war prisoners, which admittedly would be seen as railroading in the domestic context, are both ancient and unavoidable.

3) In each case, the "reactionaries" were reacting to publicity first made by the other side. The Duke case was trumpeted by people who assumed their guilt, including many on the left who wouldn't otherwise be taking part in such news coverage (e.g., the Duke 88), but found it a useful stick with which to cudgel the "oppressor" classes. The Guantanamo and Abu Ghraib prisoners' "plight" was also trumpeted by the left, to cudgel the Bush Administration.

So Conservatives' reaction was overdetermined.

I don't know exactly when or in what context Rush called the "victim" a "ho" -- but one thing which would make this acceptable is that he was right. In contrast, Imus was verbally assaulting innocent women, who were not themselves attacking anyone or entering into the public sphere, and for whom any strong criticism was therefore inappropriate, except perhaps criticism of their basketball playing style, if they played badly.

Ted Remington said...

To MM:

Yes, I don't think that conservatives consciously think, "Oh, this is a poor, black woman, so we should place less importance on her charges than we would otherwise." I just think that for both conservatives and liberals, the issue of social power structure tends to steer our initial take on the situtation in interesting ways, ones that at first blush seem counterintuitive to the usual "party line."

To quilly: I take your point, but if you read the original post, you'll see that I went to some lengths to point out that conservatives and liberals share a deep suspicion of government's power over individuals (although the focus of these is often slightly different). I won't say that your response is "mostly nonsense" or based on a "fairyland" reading of my post, but I think the suggestion that I somehow overlooked or ignored conservatives' attitudes toward government is contracted by my post, whether or not you agree with the conclusions I've drawn.

To dwpittelli--even if it were true that power relations involving race,class, gender, etc. were inverted at universities (it's not, by the way), the fact that, as you point out, the university is "one of the few" places where this is true suggests that we are not talking about true hegemonic power in any real sense.

I understand that many conservatives feel universities are bastions of wild-eyed liberalism and unchecked political correctness. I even understand (to an extent) why they feel that way. I've seen plenty of universities make wrongheaded decisions as a result of fetishizing "inclusiveness" as their primary value. But as someone whose been in and around the university system literally my entire life, I can tell you without hesitation that the portrayal of universities as some sort of topsy-turvy world in which up is down and down is up is simply not true. (I don't expect that to convince you, but I needed to say it.)

On the other points, I think you're committing some logical fallacies. The "Duke boys" were innocent, but that only became established in the last few days. For most of this time, none of us, liberal or conservative *knew* what happened. We could only guess. And what interested me was the extent to which those guesses were made along political lines, and not the ones you might expect if you took issues of race, class, and gender out. You're applying facts only established after the fact to explain reasoning that occurred before these facts were established.

You also make the assumption that "most" of the people in Guantanamo are guilty. First, "most" is an important qualifier here. It's also an assumption based on guesswork and faith in an opaque system. It's every bit as much of an assumption to presume any particular person held at Gitmo as it was to assume that the Duke folks were guilty because they were being investigated for rape.

As to the necessity of "railroading" those who are labeled "prisoners of war," this is an asserion without warrants or backing. Gitmo is hardly on the front lines. There's no reason why those held on suspicion of terrorism shouldn't receive the basic rights afforded to criminal defendents, particularly since we know that many people held there have turned out not to be guilty of anything.

As to the "reactionaries," I think it's unfair to use namecalling against one side. As my post suggested, I think both sides have used the Duke case as a sort of rhetorical proxy war for larger issues. And if arguing that the use of torture on prisoners (again, many of whom have turned out to be innocent of any wrongdoing) is unAmerican, counterproductive, and immoral, then I guess I'll cop to being a reactionary. I'd just point out that I think the same labelling can be applied to conservatives who used the revelation of abuse as a cudgel with which to beat those who voiced concern about it as "supporting the terrorists."

And as for Rush being "right," he made this statement over a year ago (follow the link on my post to the original comments). Rush, like the rest of us, was going only on hearsay and innuendo. Rush admits as much in his original comment. To what extent his claim ended up being supported by evidence that came later is immaterial. Moreover, the use of that term in any case is obviously disrespectful and degrading. To Rush's credit, he apologized (although a bit insincerely) when a caller to the show nailed him on his jump to conclusions.

This brings me to Mr. Teach's point about the rule of law. I agree 100% that the rule of law is of fundamental importance and that it was undermined by events in Durham. My point throughout my post is that I was struck by how passionately many conservatives voice their concern about the rule of law in this case, when they often label those who advocate for due process in other cases as "criminal coddlers" or "bleeding hearts."

I think all of us, whatever part of the political spectrum we happen to inhabit, must respect the rule of law and remain vigilant that it is not overlooked or twisted when it happens to suit our emotional, political, or ideological purposes. And I think both liberals and conservatives should work at being more consistent in our respect for it.

One question for all (and this is an honest question, not a snarky rhetorical one): if Nifong wasn't a Democrat, do you think the reactions to this incident would have been be any different? Or would the ire about the misconduct be redirected toward the university, the media, or some other entity? I'm honestly just curious about this.

The Lady Logician said...

Ted - speaking only for myself I don't care WHAT party DA Nifong was. He used this case solely to further his political career and that was wrong!

Regarding the Gitmo detainees - there is a huge difference between what they did and what these young men were accused of. Acts of war are not criminal sexual assault.

These young men were tried and convicted in the press by the DA. Regardless of the race of the victim or the perps this should never take place.

THAT is what America is supposed to be.

LL

Anonymous said...

I think those who try to claim that "the initial evidence was flimsy" and that it was obvious from the beginning of the case that the alleged victim was lying and that the prosecutor was motivated by "political reasons" are being either forgetful or dishonest. Yes, as it turns out, the woman was lying and the prosecutor was unethical, but that was hardly evident at the beginning, when people first began arguing about the case.

What did we know back in April of last year? Well, we knew that a woman was taken to the emergency room with injuries consistent with sexual assault. We knew that she claimed that she was hired to dance for a group of young men-- a third of which had been charged with alcohol-related crimes prior to this incident. We knew that this group of young men were known for throwing raucous parties and for violating open container and public urination laws; at least one neighbor, as I recall, complained about catching these guys pissing on his house. One member of the team emailed a graphic description of how he would like to go about killing a stripper, and another member of the team turned that email over to the authorities, presuming that it would be considered evidence. Later, we would learn that one of these fine young men had viciously beaten another young man because the beaten man requested "stop calling me gay."

With all that in mind, I think you can understand why people like me were initially predisposed to consider these young men guilty. Although I think Ted is on to something-- on some levels, I'm sure I'm biased against the same hegemonic power structures Ted talks about in his post. I know I am. But I daresay, in those first few weeks, I was influenced by more than just personal prejudice.

Of course, as I said before, we found out that the accused weren't guilty (I don't think we can go so far as to call these guys "innocent"), and that the prosecutor was guilty of serious misconduct. Really, once it was discovered that the woman didn't have any of the players' DNA on her or in her, it was pretty obvious that something shady was going on-- on that, I think, liberals and conservatives can agree. But prior to that? The people who claimed to "know" that the accuser was lying were themselves dishonest-- blinded by their own preconceived notions and prejudices. The "knew" no such thing; until the DNA evidence came back, the accuser's story looked credible.

As far as why Limbaugh could get away with calling this woman a "ho," whereas Imus got fired for using the same word... Well, I think it's because people don't tend to view women involved in "adult entertainment" as real people who should be treated with dignity and respect. They take their clothes off for money-- who cares about their feelings? They exist solely for objectification. Or so the thinking goes. In reality, there was no defense for Limbaugh's remarks-- they were hateful, misogynist, and racist.

Ted Remington said...

To LL:

Again, I agree that trying people in the press is something we can all agree was wrong. As I say, what initially got me curious about this is was my perception that many of the people voicing concern over the rights of the accused in this case are often less concerned about the rights of the accused in general, and often critical of those of us who defend the importance of due process.

And as to the rape/acts of war difference, I think this is a red herring. The nature of the alleged crime shouldn't determine whether one receives due process or not. Morover, your language itself suggests the assumption that those accused who are at Gitmo are guilty (notice you use the phrase "what they did") rather than simply being accused. We don't *know* what the accused at Gitmo have or haven't done until charges are made public and proven, any more than we *knew* the Duke players were guilty of rape because they were accused. In both cases, accusation shouldn't be enough to deny due process.

Bradley--you make a good point that there was more than just the accusation of the alleged victim to go on; what's intersting is that with some evidence on both sides, there was a tendency to put more weight on some evidence vs other evidence based, at least to some extent, on political point of view. Your point about the dehumanization of the woman because she worked in the sex industry is also an excellent one. It's yet another example of how the person making the charges was in many ways at the bottom of the social power ladder. To suggest because of what she did for a living or her past, she somehow deserved whatever might have happened to her (e.g., by calling her a "ho") is beneath contempt.

As to Wildmonk, unlike the rest of the posts that raise disagreements, which are generally respectful and seem genuinely interested in an exchange of ideas, you're reliance on namecalling and villification doesn't speak well for your intentions here, but a couple of brief points are worth making:

1) As I said above, my argument is not that either liberals or conservatives came to conclusions based solely on ideological grounds; what I said was that ideology seemed to correspond with the way different people interpreted the evidence on both sides of the case, andthat there might be an explanation for this based on the deeper issues involving the case.

2) I never compared an admitted terrorist mastermind to any of the Duke accused. That's your mischaracterization of my argument. What I compared was the situations of the Duke players and those of people detained without trial by the U.S., many of whom have also turned out to be innocent. More importantly, I compared the Duke case to the innumerable cases around the country where those who are accused are assmed to be guilty and prosecuted unfairly, often because of their race and class.

I simply pointed out that we must be equally vigilant in *all* cases of the invidual's right to due process.

As to hegemonic power, my point (as I'm sure you well know) was that the woman who made the charges was a)female b) African American c) poor, all of which put her in a a position of weakness compared to those she accused. By making the accusation, and getting the authorities to go along with it, she indeed achieved a temporary level of power. But the point was about why people tended to jump to a conclusion about the validity of her charges, and I think liberals tended to be sympathetic because of our belief that many of the power structures that create our society are arbitrary and unfair (e.g., racism, sexism).

And as to the idea that people of my ideological "ilk" somehow hold hegemonic power (assuming you mean liberals/progresives) with which we victimize poor freedom-fighting conservatives is too silly to deserve comment, other than to simply point to the occupants of the White House, Congress (until a few months ago), the Supreme Court, the majority of corporate boardrooms, etc.

True, polls on individual issues (healthcare, tax policy, labor issues, foreign policy, economics, etc.) repeatedly show that most Americans are more in line with traditionally liberal views than conservative (and even to the left of many Democrats in Congress), but that in and of itself does not a hegemony make.

tjr

DWPittelli said...

Ted Remington,

I knew the Dukies were innocent within a month of the infamous party. This was not due to my ideology, it was due to the statements and evidence presented at the time. And no, I do not generally or often come to such conclusions about famous criminal cases, due to race or any other factor.

The fact that you were ignorant of their innocence until recently does not mean the rest of us were equally ignorant, just making it up, and lucky.

DWPittelli said...

Ted,

Crystal Gail Mangum was a sex worker, at the least, and judging from the venue of her work and the number of DNA traces, a prostitute. As such, while calling her a "ho" was not polite or proper, it was an offense an order of magnitude less serious than using that same term for innocent basketball players who did not choose to enter into any such controversy, and who were not properly subject to any harsh public criticisms, except possibly for their basketball playing, if that were lacking.

DWPittelli said...

"There's no reason why those held on suspicion of terrorism shouldn't receive the basic rights afforded to criminal defendents [sic]"

Other than the facts that:

1) In previous wars, they never have.

2) Under ex Parte Quirin (1942), there is no obligation to do so for people captured overseas or shortly after arrival in the US.

3) The soldiers who captured them are not trained as police, are usually too busy to do forensics while in battle, and are a bit busy to be attending trials in the US.

Ted Remington said...

Dwpittelli:

I understand your points, but I have to mention a couple of things.

First, you didn't *know* anything about whether the Duke players were guilty or not. You made an assumption based what evidence was available through the media, just like everyone else. On what basis can you, or anyone, announce absolute certainty based on fragmentary evidence gotten through the media within a few weeks of the incident becoming news?

Second, the larger question still remains unanswered: why are so many (but certainly not all) conservatives so passionate about the rights of defendants in this case when they so often attack groups and individuals who advocate for due process in general?

Which brings us to the last in your trio of posts. No one said U.S. soldiers should be responsible for carrying out forensics in combat. What's been suggested is holding people for years without bringing charges, let alone holding a trial, is wrong, and should be anathema to anyone who places importance on the rule of law as a civilizing and democratic force.

That famously liberal group, the Supreme Court has ruled that the Bush administration has operated outside the realm of the law in regards to the Gitmo detainees.

From the Council on Foreign Relations report on the Hamdan decision:

"The Supreme Court has ruled that the Bush administration's decision to try detainees at Guantanamo Bay in military war tribunals is illegal. In Hamdan v. Rumsfeld the Court ruled that the military commissions do not comply with U.S. military law, the laws of war, or the Geneva Conventions, which protect the rights of detainees during wartime. The landmark decision marks the second time the country's highest court has ruled to check the power of the executive branch in its execution of the war on terror. In 2004's Hamdi v. Rumsfeld, the Court ruled the White House does not have a "blank check" to indefinitely hold and deny legal access to detainees who are U.S. citizens. The Hamdan decision is expected to have even more far-reaching consequences for the 450 detainees at Guantanamo Bay, which has emerged as a lightning rod of criticism for human rights advocates."

http://www.cfr.org/publication/11025/

And in what way is Quirin relevant to the discussion, given the facts that 1) the events in question happened during an actual (i.e., Congressionally declared) war; that 2) they occurred before the 1949 signing of the Geneva Rights Convention by the U.S., and 3) the defendants in the case *did* receive legal representation?

As the American Bar Association notes:

"The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all."


Why is it, then, that so many of those justifiably outraged over the railroading of the Duke players not only remain silent when it comes to this case, but actively defend such blatant violations of the very rule of law they invoke in the Duke case?

tjr

DWPittelli said...

Ted,

I did not have "absolute certainty" that the Dukies were innocent -- I merely held their innocence to be highly probable. I did have absolute certainty that they were being railroaded by prosecutorial abuses. At any rate, it is folly to assume that I or conservatives must have been coming at the case from an ideological bias, when we now know that they were correct, and accurate judgment equally explains their behavior.

DWPittelli said...

We'll see how the Guantanamo case works out. I predict that the Supreme Court will not impose your favored remedy of civilian trials.

I should also point out that in the Quirin case, most of the defendants were executed. Sadly, the US has not executed any illegal combatants as of yet. I predict that if any are, it will be by methods gaining the approval of a federal appellate, or the Supreme, court. At any rate, the Executive branch has not defied the authority of the Judiciary.

Finally, we are in an actual war, with Congress approving military force (acts of war) twice since 9/11. Holding prisoners without trial has been a basic fact of all wars, including those with less legal basis than the current one.

DWPittelli said...

I should also point out that Hamdan vs. Rumsfeld "gives the administration a simple choice. It can proceed with cases under current law, using standard military courts-martial, which provide fuller procedural protections for the accused than do the commissions. Or it can go to Congress for specific authorization to deviate from those rules." (link below)

The decision(s) did not say that the Administration had to give the detainees the "basic rights afforded to criminal defendents [sic]" as you propose.

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062901779.html

Ted Remington said...

dwpittelli--

There are any number of factual objections one could raise to a number of your points, but to stay on task, I'll simply note that, even if one *were* to grant all you say, your response does more to support my initial contention than refute it.

That is to say, the extent to which you dismiss concerns over well-documented bending of civil liberties sits oddly next to your passionate concern for the three Duke players. Your response is precisely the sort of odd juxtapostion that sparked my post in the first place.

For my part, I want justice to be done to those responsible for crimes (international terrorism, rape, etc.), but I think it's absolutely crucial that justice truly be just. One shouldn't fear making charges openly and trying people publicly and fairly. To the extent these rules are bent, ignored, or destroyed, we do the work of the terrorists by allowing ourselves to become like them.

tjr

Anonymous said...

Who knows where to download XRumer 5.0 Palladium?
Help, please. All recommend this program to effectively advertise on the Internet, this is the best program!