Saturday, October 21, 2006

Guilty Until Proven Innocent

Scott Ritter on Democracy Now’s Oct. 16, 2006 radio broadcast made what should be considered a critical observation. He pointed out that in the runup to the war with Iraq, and now in what he sees as a similar runup to war with Iran, the Bush administration has publicly accused a Middle East nation of having secret programs to build, store and deliver Weapons of Mass Destruction. No certifiable evidence is offered of either nation’s possession of such weapons or the programs to build them. Iraq and Iran are simply accused, with the U.S. President, Vice-President and Secretary of State repeatedly asserting that U.S. intelligence has "proof" of the violations in question. Ultimatums follow: unless the accused can provide satisfactory "proof" to the contrary, they will suffer dire consequences. In Iran’s case, for example, no amount of protestations that their acknowledged nuclear program is meant for peaceful purposes will suffice. United States officials repeat the accusations at every opportunity, insisting that Iran prove its innocence.

This pattern is notable for two reasons. First, the target nation is expected to prove a negative. In Iraq’s case, this was virtually impossible. No amount of evidence by IAEA weapons inspectors (who were, in fact, allowed to inspect Iraqi facilities) and former inspectors like Ritter was able to counter the "proof" the Bush administration claimed to have of hidden weapons. In its view, Iraq had the opportunity to build such weapons, American intelligence agencies were unanimous about its activities, and therefore Saddam Hussein and his henchmen were guilty—which, of course, they proved not to be.

Second, United States policy with regard to "suspect" entities is alarmingly consistent, even as far back as World War II. That is, the above procedure for attacking suspect nations is mirrored by what happens to suspect individuals. Individuals, singly or in whole groups, are targeted because of their affiliation with nations and/or ideologies with which the United States is in conflict. Individuals in the group are then arrested and accused of being, or potentially being "dangerous." The fortunate among them are given the opportunity, or more precisely, the requirement to "prove their innocence." If they cannot, they are incarcerated in some form of internment facility for the duration of the alleged crisis.

During World War II, for example, 600,000 Italian immigrants not yet U.S. citizens were designated as "enemy aliens" by Presidential Proclamation on December 8, 1941. This made them all suspect. Enemy aliens could be arrested for violating a series of restrictions, including movement beyond a 5-mile limit, possession of "contraband" such as short-wave radios, cameras, flashlights or weapons of any kind, and not carrying the required pink booklet identifying them as alien enemies. Their homes could be searched and they could be deported without further authority. But this was only the beginning. Those among them who had been targeted as "potentially dangerous" by the FBI in the years preceding the war were summarily arrested in the days following Pearl Harbor. The Department of Justice offered them hearings before special three-person hearing boards, at which they were expected to "prove their innocence" or face internment for the duration of the war. But these hearings were not conducted according to normal rules of American jurisprudence. The detainee was not told the charges against him or allowed to see any evidence. He or she was not allowed to face any accuser or have a lawyer examine witnesses (no witnesses came forth in any case; accusations were made in secret). The arrestee was allowed to "prove" his innocence only by asserting it, and by offering affidavits of loyalty from employers, friends and relatives. If the evidence did not convince the hearing board, the person’s danger to the public safety was assumed, and the Attorney General issued a formal order of internment. More than 3000 enemy aliens of Italian descent were arrested in this way, and between 300 and 400 interned for the duration.

Ezio Pinza, at that time the first bass at the Metropolitan Opera, was one of those who endured this ordeal. Arrested on March 13, 1942 at his home in Larchmont NY, he was booked at the courthouse in Foley Square, and then detained at Ellis Island. So distraught was he by this humiliation that at his first hearing, and completely in the dark about why he stood accused, he was unable to mount a cogent defense. In spite of letters from the likes of Nobel-prize-winning novelist Thomas Mann and Carlo Tresca, the most prominent anti-fascist of his time, Pinza was ordered to be interned. Pinza’s wife, Doris, however, refused to accept what she knew to be a gross injustice. She mounted a campaign to get her husband a second hearing, and, after five days in the Attorney General’s office, succeeded. With Pinza’s lawyer now able to determine, on the basis of questions at the first hearing, what some of the charges amounted to (the most egregious was the allegation that, in the Met’s Saturday morning radio broadcasts, Pinza had been subtly altering the tempo of his singing to send secret messages to Mussolini), the singer this time mounted a well-reasoned defense, and was paroled.

Years later in his autobiography (Ezio Pinza: An Autobiography, New York: 1958), Pinza wrote pointedly about the plight of the person deprived of his rights:
To understand the full gravity of my situation, you must bear in mind that the Bill of Rights, not always applicable to U.S. citizens in time of war, is nonexistent so far as an enemy alien is concerned. In being summoned to a hearing, he is presumed guilty until he can prove his innocence and he is expected to answer charges of which he is kept in ignorance. It is up to him to refute detractors whose identity and allegations are withheld from him, and to show that his release is not inimical to the best interests of the United States. This at a time when he has no way of knowing whether the evidence he offers is to the point or is utterly irrelevant. (p. 211)

Presumed guilty until he can prove his innocence. As every American schoolchild knows, this completely reverses the fundamental basis of American law—that every accused person must be presumed innocent unless and until he is proven guilty. With regard to individuals whose birth makes them members of suspect groups, however, this cardinal assumption does not apply.

Neither does it apply to American citizens caught in the same net. Yet another program imposed on those of Italian birth during World War II was the one targeting naturalized citizens. Immune from the internment program applicable only to non-citizens, these Italian Americans were targeted by an Army-run program which exiled these "potentially dangerous" individuals from vast coastal areas where it was feared they might commit sabotage or espionage. Several dozen of Italian descent were forced to leave their homes and move inland. Fortunately, Attorney General Francis Biddle disagreed with this program and commissioned the Department of Justice to do a study of its effects and value. Its conclusions, made in a 1943 DOJ report, were stunning. For the most part, the study found, American citizens were targeted for pre-war ethnic affection for their countries of origin. Further, most were removed from areas where opportunities to spy and commit sabotage were minimal, to areas where such opportunities were far greater. The report concluded with a damning indictment of the constitutional violations inherent in the exclusion orders, especially focusing on the term "potentially dangerous:"

Practically, the use of phrases such as this suggests that those who use them hold the view that a subject of an exclusion case must be excluded unless it is clear that there is no reason to exclude him. This is analogous to saying that the burden of proof is on the excludee, although the excludee, of course, cannot meet the burden, since he is not advised of the charges against him. (Preliminary Report on Study of Individual Exclusion Cases, Dept. of Justice, Alien Enemy Control Unit, August 16, 1943, p. 28)

This is the office of the Attorney General of the United States condemning the very procedure at issue here: prove that you are innocent. Innocent not just of action, but of intention; indeed, of being who you are. Though one would like to think that such a condemnation, sixty years ago during a fierce global conflict, would have offered an indelible lesson never to be forgotten by those in government, it did not.

Thus, in the days following the attack on the World Trade Center on September 11, 2001, we saw the same negative assumptions being made about Americans of Middle Eastern and/or Muslim origin. Thousands were visited by the FBI, arrested, detained and eventually deported. According to a recent article by Martha Mendoza ("One Man Still Locked Up From 9/11 Sweeps," AP, 10/14/06, reprinted on, over 1200 Arab and Muslim men were rounded up, with hundreds of individuals who were not terrorists, nor associated with terrorists… temporarily taken into city, county and federal custody. They were caught in their bedrooms while they slept, pulled from the restaurant kitchens where they worked, stopped at the border, even federal offices where they had gone to seek help.

Even now, one is still being detained. Ali Partovi, a man who "is not charged with a crime, not suspected of a crime, not considered a danger to society," sits in a detention center in Arizona, unwilling to be deported to his home nation of Iran, seeking asylum which the United States apparently refuses to give, and trying to get justice by suing the U.S. Government over beatings and other tortures he claims to have suffered during his detention. Like most of those arrested in those dark days after 9/11, Partovi was arrested not for terrorism or anything like it; he and most others were jailed, and then deported for immigration violations. As Jennifer Daskal of Human Rights Watch puts it in the Mendoza article:

"Those 1,200 were taken in on pseudo-immigration charges. It really is a black mark on the U.S. and it undermines our intelligence gathering because it creates distrust between law enforcement officials and communities where those officials should be building rapport and trust."

In the end, that undermining of trust may prove to be the bottom line. Even aside from the Constitutional violations suffered by those who are arrested and held on the flimsiest of pretexts, and then forced to prove the negative of those pretexts, there is the question of effectiveness. This is especially true when such methods are applied to nation states. If the United States comes to be seen as a nation that simply acts on the basis of wild presumptions, in the absence of definitive evidence, refusing all information to the contrary in order to "justify" its pre-emptive detentions and invasions, the distrust that Daskal mentions will continue to grow and poison every international forum. Protestations by U.S. leaders about our commitment to democracy and liberty will come to be seen, justifiably, as simply cover stories to hide the true, and truly nefarious ambitions of empire—to subjugate, control and exploit as many of the planet’s people and resources as possible.
Copyright 2006
Lawrence DiStasi

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