The tragic events of September 11, 2001 continue to echo through the American legal system.
The United States Court of Appeals for the Seventh District has recently issued a judgment concerning allegations that a Muslim attorney, of Indian descent, was improperly fired, on the basis of his religion, national origin, and color, from his job with a law firm. The case of Zafar Hasan v. Foley, Lardner [21-page PDF], had been summarily dismissed by a lower court. The Appeals Court reversed that decision in stating that there were too many matters of fact—to be decided by a jury, not a judge—to sustain the dismissal.
It makes for interesting reading, if you’ve a few minutes. If nothing else, it demonstrates that American courts try to get it right, even when a Muslim is involved.
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December:17:2008 - 05:57
I think that it would be fair to say that American civilian courts work to achieve a just resolution of issues, regardless of creed.
I would equally assert that the military tribunals established by the USA are not in the same category.
I believe that few Americans would willingly entrust their lives or freedom to these American military tribunals.
Indeed, these military tribunals explicitly permit American prosecutors to engage in conduct about which Americans once staged a revolution with the British, and Americans at that time decried such prosecutorial conduct as incapable of being tolerated.
The American government cannot as an intellectual matter demand that it be permitted to run a “justice” system in Guantanamo, Cuba of the type that America has historically condemned when conducted by others (in Russia, Burma, etc.)
December:17:2008 - 09:04
Without going into the lengthy arguments, the position of the Bush Administration has been that the Al-Qaeda (and related) fighters do not belong in civilian courts as terrorism is not just a civil crime. Nor do they belong in military courts as they are fighting as irregulars, not meeting any of the conditions of any international agreement on what constitutes a soldier. So, as neither civilian nor military courts are the right venue, something in between must be found. That ‘in between’ is Guantanamo.
Were terrorism to be treated as a police matter, then all the protections of the US court system would apply. The Administration does not believe that terrorism should be treated as a simple crime as it falls far outside of what is considered civilized behavior. It does not belong in a fully military court as would treat prisoners of war because here again, the individuals are acting outside civilized rules of warfare.
You might disagree with this solution, but it is not irrational. It is yet to be seen, however, whether it is a successful approach. From the standpoint of public relations, it assuredly has not been.
December:18:2008 - 11:41
I would disagree.
The basis for the Bush Administration’s actions is not that terrorism should be treated outside the civilian court system because it is well outside civilized behaviour. Were that to be the case, then notorious US figures such as Jeffrey Dahmer would also be placed in non-civilian tribunals.
Rather, the Bush Administration has taken an absolutist position regarding the powers of the American President as commander-in-chief under Article 2 of the US Constitution, by indicating that there are no inherent limits on that authority. The Bush Administration view is that such power is plenary and incapable of being bounded by legislative actions.
Thus, the Bush Administration has taken the formal position that it can apply such military tribunals even to US citizens, and that were it to do so, such actions would be permissible, thereby rendering nugatory the principle of habeus corpus.
Moreover, the USA has historically taken the position that American actions must be civilised, even when those of its enemies are not.
This, too, is an example of how American policy has changed during the Bush Administration.
December:18:2008 - 12:21
No, I disagree with your analysis. It’s certainly clear that Bush was looking for maximal authority that he could use to address an issue that current law (and Congress) did not address. But he was nowhere near as overreaching as either FDR or even Lincoln in asserting presidential power. In all three cases, the US courts had to pull back what the President claimed.
But the argument was really the constant tug-o-war between Congress and the President over who had more power. When Congress is in the ascendancy, the White House complains bitterly. When the President is ahead, it’s Capitol Hill doing the carping.
The media reports what puts its own interests in the fore. Here, it was an anti-Bush attitude that worked best for them and they cast the disagreement as one about fundamental rights, when it never was that. It was, as far as the Administration was concerned, about protecting the American people against an unprincipled enemy that used the structural weaknesses of democracy to attack it.