Abuse in a time of fear - Macleans.ca

Abuse in a time of fear


Barbara Falk compares the Rosenbergs and Omar Khadr.

American justice has been marred in both the Cold War and the War on Terror by a combination of politically motivated prosecutions with larger didactic purposes, the over-reliance on conspiracy charges to lower the burden of proof, and the relaxation of the rules of evidence law. In both eras, the refrain of national security has been invoked. But it is at times of national insecurity that legal safeguards are needed the most, and it is to the most politically unpopular defendants already demonized by the media and in the court of public opinion that the most stringent due-process requirements should be applied. To do otherwise, as both the cases of Julius and Ethel Rosenberg and of Omar Khadr attest, is to politicize justice and abuse the rule of law.


Abuse in a time of fear

  1. Interesting article.

    I wonder, though, was Khadr "demonized" by the media, or saved by it? How does the media's coverage compare to, say, the Kohail case?

    Did the prosecution really rely heavily on "conspiracy" charges, or was the main thrust the murder charges and the charge relating to the manufacture of IEDs?

    Isn't national security secrecy and confidentiality also "needed most" during times of "national insecurity"?

    Isn't the question with both the Rosenbergs and Khadr not whether or not they were guilty, but the extent of their guilt?

    I'll stand by and await many "thumbs down".

  2. 'The New York Times, in an editorial on the 50th anniversary of the execution (June 19, 2003) wrote, "The Rosenbergs case still haunts American history, reminding us of the injustice that can be done when a nation gets caught up in hysteria."'


    'The Excited States of America' as they've been called did this.

    We were expected to be so much better.

  3. Yes, the problem with using the Rosenburgs as an example of justice gone awry is that they were, in fact, guilty of treason, as charged. The same problem faces the advocates of Mr. Khadr. If his sympathisers would abandon the argument that he was innocent or justified in doing what he did, and concentrate more on their concerns about process and the appropriate sentence for his crime, they'd be on firmer ground.

  4. What I don't understand is why people who believe Khadr is a terrorist and needs to be punished, are so unconcerned that he is the ONLY one who has been convicted?

    Invading two countries and creating a massive security apparatus, the largest ever assembled on earth, has produced exactly one conviction in nine years. Why do you accept this obvious scapegoating and failure in performance by your military, security and political leaders?

  5. I wonder, though, was Khadr "demonized" by the media, or saved by it?

    Of course, this is one of the perils of referring to the entire media as though it was one entity. I suspect that the actual answer to your question is that it depends upon which media you're referring to. Some were trying to svae him, and some were trying to paint him as the Devil.

    I also wouldn't say the media "saved" Khadr, though some were clearly attempting to do so (I'd say he was saved by the fiasco of the system created to prosecute him, which was so fatally flawed that prosecutors likely felt that they had to make a deal, rather than risk an acquittal, or an inevitably overturned conviction).

  6. It was mass hysteria over trivia….in both cases.

  7. Indeed. Bush even admitted in his new book that he authorized water-boarding.

    That is a war crime.

  8. Rosenberg's sons spent decades trying to vindicate their parents, but in 2008 they concluded that their father really was guilty of espionage following Morton Sobell's confession:

  9. I have many problems with the Guantanamo system. And the delay in prosecuting Khadr was unacceptable.

    But I don't completely accept your logic.

    Canada has only successfully prosecuted one war criminal under the War Crimes legislation introduced in 2000, Désiré Munyaneza. This does not make Munyaneza a "scapegoat".

  10. Omar was convicted, among other things but principally, of "murder in violation of the laws of war," which is a category the U.S. just made up for the military commissions. It has no legitimacy in international law, as so much else that happened in this commission did not. The Americans are not honouring treaties and conventions that they have signed and ratified (which is supposed to make them U.S. law too), and the Harper government is just fine with that.

    Khadr's commission was a show trial. McCarthyism/Stalinism — pick your metaphor. North Americans don't seem to care, and the real war criminals, who are openly confessing to their crimes, walk free. Nuremberg, mon amour.

  11. Isn't the question with both the Rosenbergs and Khadr not whether or not they were guilty, but the extent of their guilt?

    No, that is not a question but a statement of the obvious. The question is: does being pretty sure that someone is at least a little guilty justify scrapping the accepted process of obtaining justice? For far too many Canadians the answer is absolutely.

  12. Well, the video showing him manufacturing and planting IEDs removes all doubt relating to that offence, at least. It goes beyond being "pretty sure", in the minds of those I have spoken too.

    People seem less certain about the murder charge, with good reason. And most people seem to be rightly concerned about the process, and about the lenght of his sentence, given his age.

    I wouldn't judge Canadians too harshly just yet, and I don't get the sense that the average person is gripped by "mass hysteria" as Americans were in the 50's.

  13. Furthermore, conspiracy (as you know, of course) doesn't alter the burden of proof, though depending on available evidence can helps ecure a conviction.

    Secrecy and confidentiality are important issues but keeping important details secret is almost a matter of routine – and where it isn't, it should be, post-haste, for the benefit of everyone.

    I'm not sure the media did him much good in the end. Having access to the consulate and counsel to make his constitutional plea was his saving grace rather than national attention – and again not that it did him much good.

    As far as guilt, it certainly appears there was strong evidence – all the more reason the appropriate remedy should have been administered in a timely manner.

  14. I have no idea what the average plea bargain for being charged with serious offences on a foreign battlefield is, but eight years for a 15 year old acting on the direction of his father, held for more than 7 years in an illegal system where his Canadian Charter rights were violated as well doesn't seem like much of a victory. That's doubly so if the prosecutors were worried about not being able to get anything.

  15. You're talking apples and oranges. Or maybe ten storey pineapples and tiny kumquats.

    There has been a massive attempt to interdict terrorists with invasions and new security agencies and weakened civil protections. and the questionable prosecution of Khadr is the official result.

  16. I am uninformed when it comes to the Rosenbergs. I cannot make a valid comparison because of my ignorance of the facts in that case.

    But the Khadr case did bring one thing to the forefront. The American administration is willing, regardless of the leanings of government in power, to change the rules in mid-game in order to ensure a desired outcome.

    I simply hope I'm never so unpopular that they need to change the law to find me guilty of something.

  17. Indeed, I think that they "changed the rules" about half a dozen times during the course of the Khadr prosecution. Not a high point in the annals of U.S. justice.

  18. Well, we never collected a mass of suspects, like the United States. We simply caught them, and handed them over to the Afghans.

    We never took on the business of prosecution, so it's hard to compare the situations.

  19. I do think Khadr was "saved" by the media in the sense that all the media attention focused on the case brought pressure to bear on both the American and Canadian governments to find an "acceptable" resolution to the case. Had the public spotlight not been on the trial, there probably would have been no plea bargain to pre-empt the much longer sentence imposed by the jury and Khadr would probably have spent the entire sentence in the U.S. or Guantanamo.

    Or, he may have spent many more years at Guantanamo waiting the trial that never comes.

  20. I have clearly lost the thread. I am not sure what we are arguing over, since I largely agree with you (I think).

    It's just that Khadr doesn't fit my definition of a "scapegoat". The lack of success at Guantanamo is evidence of U.S. incompetence, but not evidence of the "scapegoat" thesis. The prosecution seemed to be motivated, largely, by the seriousness of the charges and the concerns of the victims and Speer's family. Otherwise, it looked to me like the U.S. would have been happy to wash their hands of the case, given Khadr's age. He was not the poster boy for terrorism, even in the U.S.

  21. The "incompetence" as you call it at Guantanamo was a sustained and deliberate attempt to subvert legal process in order to secure an conviction. The prosecution wasn't "motivated by the seriousness of the charge" (which they invented as noted below) they were motivated by the need for a conviction so they wouldn't have to answer for the torture and mistreatment of a minor.

  22. Betraying your country to a totalitarian enemy wasn't "trivia" in the case of the Rosenbergs. Nor was becoming a member of a criminal gang and murdering a soldier in Khadr's case a "trivial" matter.

  23. How so? If he had been somehow acquitted, how would the prosecution have to answer for the mistreatment? In what forum? Before the Guantanamo tribunal? Are you serious?

    It seems to me that the Arar case, and other cases, demonstrate that there is currently no way to hold U.S. officials accountable for such abuse of foreign nationals, if "national security" issues are at stake.

    So no, I don't think that the prosecution was somehow running scared of being held accountable.

  24. Leaving the execution of Ethel to be viewed as, what, collateral damage?

  25. http://query.nytimes.com/gst/fullpage.html?res=9D

    This article [ particularly the last para does go some way to providing a motive for securing a conviction. The prosecution was not solely motivated b the charges or concern for the Speer family – you're being naive at best here. The whole process stank. The only positive the US military justice system can justifiably claim is the tenacity and honour evidenced by people such as commander Kuebler who were appointed to defend him.

  26. Sorry, read the article twice. Can you point out the "motive" for me?

    I am not disagreeing that at times there was pressure to move the case along. It would be ridiculous if there wasn't, since everyone agrees it dragged on way too long.

    But we are talking about whether or not there was a motive to make Khadr, in particular, a "scapegoat". Was this hidden in the article somewhere?

  27. Commander Kuebler noted that the judge had barred the defense from raising challenges at this stage of the case to the constitutionality of the military commission system. He added that the judge had told him in a closed-door meeting that he had ''taken a lot of heat'' after issuing one of the rulings in June that stalled the commission cases. Pentagon officials and a White House spokesman said they disagreed with the June rulings.

    Colonel Brownback, clearly irritated, said he had not intended Commander Kuebler to disclose that conversation but said, ''I never said anyone who had any influence over me said anything.''

    Evidence [ if only circumstantial] of political interference – no? Kuebler later made claims the whole systen was set up to make findings of guilt – this is political and nothing at all to do with administration of justice. It was a remarkable stance for Kuebler to take and ma have cost him his career – brave man.

  28. I agree. The process under which Khadr was held was awful and full of flaws, but there was tons of critical media coverage of that process. While I appreciate the point that the author is trying to make, the comparison to the atmosphere surrounding the Rosenbergs in the 1950s is not terribly helpful. One problem is the main audience, Canadian vs. American. Re: the Rosenbergs, the author is really talking about an American story. But with Khadr, he was never really a big story in the American media the way the Rosenbergs were. He was a big story in the Canadian media, but as I said, there was tons of very critical coverage in the Canadian media.

  29. The plea agreement included acknowledgment that Khadr would never take legal action against the US. Do you think Khadr just offered to throw that in there, or do you think someone else had an interest in making sure the matter never made it to a real court?