Not long ago the Korea Herald published a letter extolling the virtues of American justice as applied in the case of the two American soldiers who drove a military track vehicle over two Korean middle school girls, killing them. In comparing the American and Korean systems of justice, the writer suggested circumspectly that the American system, being more objective due to its emphasis on process, is superior. The premise of the argument was that if the judicial processes developed over time through planning and trial and error are followed, Americans see justice as having been done, without particular regard to the outcome, whereas Koreans first posit that damage has occurred and base their judgment of whether or not justice has been done on whether or not some reparation has been made. While not stated explicitly, the upshot of this is that Americans presume innocence and Koreans presume guilt. I agreed in many ways with the writer's take on the American system, since it appeared to emphasize the role of the constitution and the rule of law but, having almost no knowledge the Korean legal system, I was skeptical of his conclusions, especially given the letter's evident nationalist tinges, so it was with interest that I read another writer's well-written and thoughtful, though overly emotional response which the paper published not long afterward. Now, a few months later, the original, presumably American writer's letter seems almost laughable in the face American policy.
Where is the supposed regard for process, or, if you like, 'due process'? I, an American (surprise! ), have read some things that scare the Orwell out of me. Using a predator drone, the United States military launched a missile that destroyed a carload of terrorists in Afghanistan. Fine. War on terrorism, etc.
Maybe, if we try really hard, we can overlook the fact that we, the general public, have no way of knowing whether the people (PEOPLE) in the car were terrorists or wedding party-goers. It turns out, though, that an American citizen was killed in that very same car. In the same article in which I read of this high-tech car bombing, information cited as coming from the Bush administration stated that there was no constitutional issue surrounding the murder of this American. Why not? Because he was an enemy combatant.
Therefore, apparently, he was not eligible for, did not deserve, the constitutional protection, the presumption of innocence, guaranteed by the United States Constitution-the same presumption of innocence afforded the American soldiers who ran over two Korean girls on a country road. Although no one knows for sure, I don't doubt that the girls' deaths were accidental. Even most Koreans might admit that, despite their disappointment over the failure of the United States to promptly take full responsibility or offer an acceptable apology. The point is that on one hand we have American soldiers killing innocent girls and on the other we have American forces killing an American citizen who may or may not have ever been involved in actual combat.
While this all has a kind of sick fairness-the US may let its soldiers off the hook for killing foreign civilians, but it also lets them kill American civilians-I have to wonder about the American who was killed. Where was his 'due process'? What if I am one day categorized an 'enemy combatant'? What recourse do I have? How do I prove my innocence, since I'll never get a day in court? At best I'll be brought before a military tribunal and tried under military law, despite the fact that I have never served in the military.
At worst, who knows? Will I be bombed from a thousand miles away? I have yet to mention the hundreds, perhaps thousands, of PEOPLE being held at Guantanamo Bay without recourse to any legal 'process,' or the untold others grabbed by the INS and other organizations. What if my wife is grabbed? She's Korean. With the intensifying face off between North Korea and the US, maybe she will be racially profiled, taken, and held incommunicado for an unspecified length of time, green card notwithstanding.
The detainees, at Guantanamo and elsewhere, through an executive sleight-of-hand, with legislative complicity and judicial ambivalence, have been placed outside the system. Someone wrote that all systems, from the moment of their conception, begin to break down. It is clear that the moment an integral process becomes independent of the system of which it was originally a part, the system is irreparably damaged, since the very function of the process is to serve the system, which in turn guides the application of the process. Men created the American system. Men are destroying it at an ever-accelerating pace.
The constitution guides the application of the judicial process, which serves to guarantee the constitution's survival. When the judicial process, already corruptible and corrupted, is applied outside of constitutional jurisdiction, it becomes infinitely more corruptible. It is perverted and no longer functions; it dysfunctions, and the constitution loses meaning, since one of its major organs, the judiciary, has been bypassed. Eventually I suppose a group of senators (not this one, by any means) will have to put a hit out on some overreaching president, but by then it will be too late. The time to act is now, if not sooner. I hear the American Bar Association is raising hell over the 'enemy combatant' issue.
Perhaps lawyers are good for something after all. Few others seem to be standing up.