by Jacob G. Hornberger
The news media is reporting the possibility of an imminent release of the two American hikers who have been jailed in Iran since July 31, 2009. Shane Bauer, his fiancée Sarah Shourd, and their close friend Josh Fattal were arrested by Iranian authorities after allegedly crossing into Iran while hiking in Iraq’s Kurdistan region.
Shourd was released on bail, and she returned to the United States, refusing to return to Iran to stand trial. Bauer and Fattal were tried and convicted of illegal entry and spying and each was sentenced to a total of eight years in jail.
Iranian President Mahmoud Ahmadinejad has announced that the two men will soon be released under bail, although the Iranian judiciary, which is at odds with Ahmadinejad, has replied that the case is still under review.
U.S. officials say that the case is a travesty of justice. The hikers inadvertently strayed into Iranian territory, they say, and were not spying for the U.S. government.
Yet, the hikers were given a trial, right? After hearing the evidence in the trial, the court found the hikers guilty, not only of illegal entry but also of spying.
U.S. officials would undoubtedly respond that the trial was a sham, a kangaroo proceeding whose guilty verdict was preordained.
Now, let’s consider a hypothetical situation. Suppose two Iranian men were caught by U.S. authorities illegally entering the United States from Mexico. What would be the likely response of U.S. officials?
The U.S. response would be precisely the same as that of Iran, especially given the way that U.S. officials feel about the Iranian regime. If the Iranians claimed that they were simply hiking along the border when they inadvertently strayed into the United States, U.S. officials would scoff. At the very least, the men would be charged with illegal entry, just as those American hikers were.
What would seem to be different, however, about Iran and the United States is the nature of the judiciary system in the two countries. Notwithstanding the fact that the two Iranians would be foreigners, under our system of justice they would be entitled to all the rights and guarantees to which Americans are entitled.
Right to counsel. The presumption of innocence. Right to call witnesses. Right to cross examine witnesses. Right to testify. Right to remain silent. No evidence based on torture. The right to speedy trial. Due process of law. Exclusion of illegally acquired evidence. And perhaps most important of all, trial by jury, a system by which ordinary citizens in the community, rather than the judge, decide the guilt or innocence of the accused and even the justice of the law itself.
It is those principles, some of which stretch all the way back to Magna Carta in 1215, that have long been the hallmark of America’s judicial system. It is those principles that have long distinguished our system from other judicial systems around the world.
Prior to 9/11, those hypothetical Iranian hikers would be entitled to all of them under the U.S. Constitution.
Not anymore, however, at least not since 9/11, when the Bush administration, together with the U.S. military, used the terrorist attacks on that day to revolutionize America’s judicial system to such an extent that a major part of it now mimics that of the judicial system in Iran.
Under our hypothetical, U.S. officials now have the optional authority to seize those two Iranian hikers, remove them from the jurisdiction of the federal courts, and deliver them into the clutches of the military. All they have to do is label them terrorists. Upon the issuance of that label, the two men could now be immediately whisked away to a military prison camp, including the one at Guantanamo Bay.
While the men would still be entitled to file a petition for writ of habeas corpus, all that U.S. officials would have to do is show a modicum of evidence establishing a link to terrorism, perhaps even the same type of evidence that Iranian prosecutors used to convict those American hikers of spying. It certainly wouldn’t be difficult for U.S. officials to link Iranian hikers to terrorism, especially given the fact that they’re from Iran, whose government U.S. officials consider to a terrorist regime and a member of the axis of evil.
Alternatively, under our post-9/11 system of justice, the CIA could whisk those Iranian hikers away to Syria, Egypt, Libya, or any other dictatorship in order to torture confessions out of them, as the CIA has done to numerous suspects since 9/11.
The Iranian hikers could be held in jail for the rest of their lives without a trial. If they were ultimately accorded a trial, a jury would not decide their fate. Instead, U.S. military officials, who answer to the president, would be making that determination. The proceeding would be as kangaroo in nature as judicial proceedings in Iran.
The revolutionary transformation of America’s judicial system is just another part of the post-9/11 legacy, along with the invasions, occupations, kidnappings, renditions, torture, torture partnerships with dictatorial regimes, Patriot Act, enemy-combatant doctrine, NSA-telecom spying, body-groping at the airports, and, of course, the out-of-control federal spending and debt that is hurtling our nation toward bankruptcy.
Jacob Hornberger is founder and president of the Future of Freedom Foundation.
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