Guilty until proven innocent

Thu May 26, 2005 5:17 PM EDT

Perhaps one the most dangerous, and most damaging, features of the war on terror is the hollowing out of one of the core tenets of our judicial system--the presumption of innocence. Witness the treatment of detainees at Guantanamo, Bagram, and elsewhere who have been denied legal rights on the grounds that, well, they're not entitled to any. This argument is of course premised on a presumption of guilt. (Consider how ingrained is this habit of thought among our military and civilian leadership: when asked for comment on the allegations of Koran-flushing, Pentagon spokesman Lawrence DiRita said, "It's a judgment call, and I trust the judgment of the commanders more than I trust the judgment of Al Qaeda," by which he meant the detainees at Guantanamo.) As well as being legally and morally objectionable, this presumption, as evidenced by periodic detainee releases, is quite often incorrect.

Nevertheless, this same presumption lies behind the administration's approach to domestic security. Here matters are further complicated by the government's self-contradictory insistence, one, that a suspect shoulder the burden of proving his innocence (the logical flipside to the presumption of guilt), and, two, that crucial evidence against a suspect remain secret -- even from the suspect. Take the Senate Intelligence Committee's discussions on the expansion and use of Patriot Act powers. The Committee is scheduled to have a closed meeting today to discuss classified information on how the Patriot Act, passed in 2001, has been used. The concerns that many Americans have regarding the abuse of power may or may not be discussed. We won't know either way. The reasoning behind any abuses of power—unlawful searches and seizures, amassing lists of Americans based on their political affiliation, medical information, etc.—is classified. Any discussion about this classification? Also classified.

You might be on a list, but the government doesn't have to tell you that, much less why. Essentially, it becomes impossible to prove your innocence, because you don't know what you're innocent of. Take the Homeland Security's "no-fly" lists. A recent Washington Post article notes, "Homeland Security officials will not discuss the criteria that put an individual on the no-fly list, or how one is removed, except to say that the list contains names and other information about people with ties to terrorism. We know, thanks to the ACLU, that quite a few individuals and organizations without any apparent "ties to terrorism," (like the ACLU itself, and certain human rights and advocacy groups) are being watched--and in some cases, intimidated--by local government officials; so clearly the term "terrorism" is being broadly interpreted. How broadly? There's no way of knowing.