The History of the Presumption of Innocence (Why We Don't Punish Those Not Found Guilty)

Looks like it's time for a little history lesson. Let's go back to 1895 and the Supreme Court decision in Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394 (later overruled on unrelated grounds.)

The Supreme Court, in Coffin, traced the history of the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Here's the history: [More...]

Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. XLVIII, Tit. 19, 1. 5.

"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.

"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.

"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says: "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.

Lord Hale (1678) says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

The idea that you can imprison people indefinitely who have neither been charged nor convicted of a crime is abhorrent to our system of justice, our values, our history, our heritage and our humanity.

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    Building a better kangaroo at Guantanamo Bay (5.00 / 1) (#5)
    by Jacob Freeze on Sat May 23, 2009 at 05:33:47 AM EST
    David E. Graham is the Executive Director of The Judge Advocate General's Legal Center and School, US Army. He served in the US Army as a Judge Advocate for thirty-one years, specializing in International and Operational Law.

    Rather than concentrating his attention on remedies available to "enemy combatants," Graham challenges the denial of habeas corpus implicit in the government's "unilateral determination that each of these detainees is an 'unlawful enemy combatant.'"

    The definition of "enemy combatants" is unconstitutional, and likewise every procedure that arises from it.

    In truth, even a casual reading of the Opinion reveals that the Court does, in fact, speak to what it views as the specific deficiencies of the CSRT process and deals, at some length, with what it deems to be the essential requirements for a habeas writ, or its substitute, in order that such might serve as an effective and meaningful remedy for the individuals detained at Guantanamo. The District Court for the District of Columbia, the sole court that will hear the appeals of the Guantanamo detainees, is already in the process of both assessing and implementing this guidance. While this is a challenging mission, it is one that can, and will, be accomplished with skill and, very significantly, judicial alacrity.

    Most importantly, the District Court will be unable to avoid dealing with fundamentally important issues raised by the Boumediene decision. Key among these is the fact that, while Guantanamo detainees may now submit writs challenging their detention by the US government, the government's very right to detain such individuals is fully dependent upon its unilateral determination that each of these detainees is an "unlawful enemy combatant", as that term is defined in the Military Commissions Act.

    Given the scant attention previously paid to the definitional validity of this operative term, the principal matter to be dealt with by the District Court would initially appear to be that of the determination by the Court in Boumediene that the process currently available to detainees for the purpose of challenging their status as "unlawful enemy combatants" (a determination resulting in their indefinite detention) is an inadequate alternative to habeas. Accordingly, it would be logical to assume that the District Court's exclusive focus must be on the identification of those procedural rights and protections that are to be afforded detainees in order to construct a process that will serve as an effective habeas substitute. And, indeed, the District Court will have the task of articulating these requirements.

    Graham's objection is accordingly deeper than the usual arguments about procedural remedies available to prisoners already classified as "enemy combatants," and suggests that Mr. Obama's re-invention of military commissions is just another version of the kangaroo courts which have sustained and endorsed the sadistic mistreatment of detainees at Guantanamo Bay for the last seven years.

    Is there an actual war or wars? (5.00 / 2) (#9)
    by Saul on Sat May 23, 2009 at 08:25:58 AM EST
    How do you define war?  If the U.S. says they are fighting two wars then why do not all the criteria that logically follows the word war follow.

    Can you actually say you are fighting a war or wars  and exclude that there are no prisoners of war.  

    Either it's a war or its not.

    If it's a war then their are prisoners of war

    If its not a war then you should have treated 911 strictly as a crime just like the Oklahoma bombing.

    Excellent point! (5.00 / 1) (#43)
    by mcl on Sat May 23, 2009 at 04:26:59 PM EST
    What's scary here is that this sets a precedent. All a future politician has to do is declare some problem a "war on [X]" and habeas corpus and due process and the right to a trial and the banon torture goes away.

    Hey...we're in a so-called "War on Drugs." Why not set up a Guantanamo Bay for suspected drug dealers? Why not torture suspected Mexican cartel members to get info? Why not use military tribunals and secret courts to try accused drug traffickers?

    When we travel down this road, the destination becomes very dark indeed.


    I like this quote (5.00 / 4) (#10)
    by TeresaInSnow2 on Sat May 23, 2009 at 08:26:20 AM EST
    Justice Jackson's dissent, in Korematsu v. United States, a decision that affirmed the constitutionality of Japanese internment:

    A military order, however unconstitutional, is not apt to last longer than the military emergency....But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order....The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

    From the New Yorker

    Obama's leaving a loaded gun lying around the White House.  Who is going to load it with bullets once his terms of supreme adulation are up??

    Which is precisely (none / 0) (#16)
    by gyrfalcon on Sat May 23, 2009 at 09:36:04 AM EST
    why he's talking about legislation to establish the procedures for dealing with it.  The legislation has to be written very, very, very tightly and carefully, though.

    The real loaded gun he's left lying around the White House though, IMHO, is the failure to pursue the illegal acts of the previous administration. If Bush can get away with declaring himself exempt from the law, the Congress and the Constitution, and suffer no consequences at all, some future Bush will rush to do the same.


    It's pretty (5.00 / 1) (#18)
    by TeresaInSnow2 on Sat May 23, 2009 at 09:47:30 AM EST
    idealistic to expect such bullet-proof legislation, especially out of the bungling buffoons who are currently running the show.

    I loved Rachel Maddow on this....Obama first criticizes Bush for creating ad-hoc law, and now he's going to create his own ad-hoc law.

    Her clip is at Greenwald today if you're interested.  


    Rachel Maddow is a disgrace (1.00 / 0) (#35)
    by gyrfalcon on Sat May 23, 2009 at 02:52:40 PM EST
    Sorry, but she is so thoroughly dishonest, there's zero of value in anything she has to say, IMHO.

    I don't know what "ad hoc law" is supposed to mean anyway.  Bush did not acknowledge that any law constrained his actions in any way.  Obama is trying to thread carefully through what his legitimate powers as president are, and get statutory authority from Congress for things he does not have power to do on his own.

    How that constitutes "ad hoc law" in anybody's mind but a preening smartmouth like Maddow is beyond me.


    The more decisions he makes (5.00 / 2) (#20)
    by Anne on Sat May 23, 2009 at 10:19:32 AM EST
    that effectively legitimize the actions of the Bush administration, the farther we get from ever getting any accountability.

    The thought of the Congress being able to craft the right kind of legislation - "very, very, very tightly and carefully" - makes me want to pound my head on my keyboard.  For one, we do not have a sufficiently strong group of Democrats like Feingold and Whitehouse who can get legislation through that has not been thoroughly distorted and corrupted by Blue Dogs and Republicans - AND - we cannot count on Obama sticking to whatever he origninally outlines - you know and I know that he will concede and flip-flop on any number of aspects of the legislation.

    It will once again be "the best we could do to  accommodate the real and legitimate concerns of all involved and still protect the American people."


    Lincoln (5.00 / 1) (#36)
    by cal1942 on Sat May 23, 2009 at 03:20:11 PM EST
    Article 1, Section 9, Clause 2

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    Secession was rebellion.  9/11 was neither rebellion nor invasion.

    No comparison between the actions of Lincoln and Bush.



    I'm aware of the history (none / 0) (#47)
    by cal1942 on Mon May 25, 2009 at 11:01:14 PM EST
    "Lincoln got away with it" (5.00 / 2) (#37)
    by mcl on Sat May 23, 2009 at 03:26:16 PM EST
    Because Lincoln faced a situation in which half the united states tried to secede and Lee's Army of Northern Virginia marched on Washington with 20,000 Confederate troops.

    The previous administration faced a situation in which a handful of guys with box cutters crashed two planes into two skyscrapers and the Pentagon.

    If the Confederacy had succeeded, the united states would have ceased to exist. Lincoln could have been captured, Washington D.C. conquered, and Lincoln could have been put on trial and executed.

    Nothing Al Qaeda did with three 757s could have made the united states cease to exist. There is zero chance that Al Qaeda could ever have conquered Washington D.C., or captured and tried and executed the president of the united states.

    There is no equivalence between a massive civil war lasting four years and claiming 600,000 American lives, and a handful of thugs with box cutters hijacking three airplanes.

    It's a false analogy.

    More: Lincoln never ordered anyone tortured, and Lincoln's White House lawyers never issued legal opinions claiming it was constitutional. Lincoln never claimed the power to declare anyone, anywhere in the world, an enemy combatant, able to be kidnapped and imprisoned without trial forever.

    Lincoln never established a torture camp outside the United States to which Confederate irregulars were sent to be tortured and then summarily judged by kangaroo courts whose primary evidence consisted solely of statements made under torture.

    If you think the Civil War and the current situation are remotely equivalent, check what you've been drinking to make sure it wasn't spiked with LSD.


    "necessity does not admit of cruelty" (5.00 / 0) (#46)
    by Andreas on Sun May 24, 2009 at 01:31:38 PM EST
    Military necessity does not admit of cruelty - that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

    General Orders No. 100 : The Lieber Code

    Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.


    There was an (none / 0) (#48)
    by cal1942 on Mon May 25, 2009 at 11:07:44 PM EST
    actual Constitutional basis for Lincoln's actions as I noted above regarding suspension of the writ of habeas corpus.

    American power (5.00 / 1) (#22)
    by CodeNameLoonie on Sat May 23, 2009 at 10:32:18 AM EST
    depends on being able to bully people around the world. This has been true for centuries. It will continue to be true. People will not bow down to American interests simply because of the platonic beauty of the US justice system.

    Who honestly voted for Obama to dismantle American power?

    I'd wager most voted for him to use this power more responsibly, but not to relinquish it. Neither to outside powers nor to Republican ideologues. To walk this fine line, he will need political and legal tools.

    Preventive detention, an evolving concept, is one such tool. People who refuse to see this tool as intrinsically linked to the maintenance and affirmation of American power, of which all Americans to some degree are the beneficiaries,  are indulging in self-righteous fantasy.

    The issue here is not presumption of innocence, but of devising a shrewd, but palatable way out of an impossible situation: how to give up power (to declare the War on Terror over) while maintaining the historical basis for this power both domestically and abroad.

    Obama in 2008 on Habeas corpus at Gitmo (5.00 / 4) (#24)
    by TeresaInSnow2 on Sat May 23, 2009 at 10:41:13 AM EST
    Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.


    Yet another Obama lie.

    Thanks Obama and his supporters for helping our principles be destroyed.  We can't capture and permanently detain all the terrorists and ensure our safety.  That is impossible. So instead, we maintain this worthless policy which is just repackaging and extension of Cheney/Bush, while destroying our own credibility.

    Terrorists: 1, Obama and his supporters, 0.  Enjoy.

    In WWII, The US Had... (5.00 / 2) (#27)
    by santarita on Sat May 23, 2009 at 10:58:28 AM EST
    prisoner of war camps in the US where captured soldeirs stayed until the end of the war at which time they were repatriated.  Treat them as prisoners of war with a reasonable time limit - say 5 years at which time the status of the "war" will be reviewed.  

    Perhaps if the Bush Administration had paid attention to the law, we wouldn't have a situation where people who might have been tried for crimes when caught now can't be.  At least Obama is trying to bring in Congress and the judiciary into untying this Gordian knot.

    That (none / 0) (#49)
    by cal1942 on Mon May 25, 2009 at 11:10:27 PM EST
    does not make it right.  We expect our "leaders" to uphold the rule of law.

    Prisoners of war (none / 0) (#1)
    by Big Tent Democrat on Sat May 23, 2009 at 02:19:00 AM EST
    I think many have misunderstood the concept.

    No, I have not misunderstood (5.00 / 4) (#2)
    by Jeralyn on Sat May 23, 2009 at 03:05:12 AM EST
    "prisoners of war" . When you are talking about the amporphous war against terror that will last generations and is a war in concept only, you are talking about something different.

    Indeed (5.00 / 1) (#3)
    by Big Tent Democrat on Sat May 23, 2009 at 03:10:34 AM EST
    It is quite different from the concept of presumption of innocence described here.

    IT is MOST LIKE a prisoner of war analysis.

    The court's review will entail whether the STATUS that Executive assigns is properly supported by evidence. but the standard will not and should not be beyond a reasonable doubt.

    To be honest, when President Obama lays out his procedure for such status review, one that complies with Boumediene, it will likely be affirmed by a unanimous Court imo.

    I truly think most of my legal allies are completely misinterpreting the issues presented here.


    We think you are (5.00 / 2) (#4)
    by Jeralyn on Sat May 23, 2009 at 03:12:54 AM EST
    I'm beginning to understand (5.00 / 1) (#8)
    by Militarytracy on Sat May 23, 2009 at 08:24:39 AM EST
    what has been going on now.  And now I understand why the military tribunals are a fait accompli.  Of course we will now observe the Geneva Conventions, and the War on Terror is on..........but we won't be calling it that Bushism.  Obama can make claims that he has a system in place that allows him to fully protect America from the plague of terrorism because he does.  And most people will be fine with all of this, but I feel very sad because I still want my pre 9/11 reality.

    My only silver lining (5.00 / 1) (#11)
    by Militarytracy on Sat May 23, 2009 at 08:41:17 AM EST
    is that the Bush Administration could have easily done this but they wanted to get their torture on and everything had to be so secretive after that.  Americans couldn't know anything about how those that they were being "protected from"....thereby not allowing for public support either.  Obama will do all this with oversight.  He isn't going to torture anyone.  We will all witness moves being made to keep the people of America safe.  And soon Dick Cheney will be fully exposed for the torturing disgusting vile little Dick that he is.  And if I were President dealing with the reality of terrorism and the fear mongers who use fear to create the opportunity for them to take frightening powers that lead to torturing people I would do exactly what Obama is doing.  But none of it makes me happy.

    Nobody's happy (5.00 / 1) (#15)
    by gyrfalcon on Sat May 23, 2009 at 09:31:25 AM EST
    You said it above, but the pre-9/11 world is gone and isn't coming back in our lifetimes, if ever.

    What Obama is doing is trying to figure out the least bad way of coping with this.

    I'll tell you this, I'd far, far, far rather have Obama working out the procedures for how to do this than Bush or McCain.


    I have to ask (5.00 / 1) (#19)
    by TeresaInSnow2 on Sat May 23, 2009 at 09:51:58 AM EST
    Would all of this be okay with you if Russia or China were doing it?  And if the answer is "they already are" do you think that's okay?

    None of this is "Okay" with me (none / 0) (#34)
    by gyrfalcon on Sat May 23, 2009 at 02:47:05 PM EST
    9/11 is not OK with me, nor the embassy bombings or the spanish and british train stations, etc., etc., etc.

    This is a different world.  What's "okay" with me is that it's somebody like Obama (not my first choice, as you may remember, but acceptable) trying to figure out what the hell to do about it and not somebody like Bush or Cheney or McCain.  I may not be completely comfortable with whatever he comes up with, but I do absolutely give him the benefit of the doubt that he's trying to figure out, as I said above, the "least bad way" of dealing with it.  There is NO "good" way.

    Russia and China are entirely beside the point.  But in general, I do not reflexively and automatically fault any country that is genuinely struggling with this question because it has no easy answers.  The governments of China and Russia have proven themselves amply to have not the least interest in civil liberties, and the countries have no history at all, ever, of observing them or holding those values.  So they have nothing to struggle over.  It's simple for them, just lock up or assassinate people who don't toe the line.

    There is no comparison possible between Russia and China and the U.S.

    I am at least willing to wait and see what Obama comes up with on this, rather than just condemning him in advance, as some here are doing.  So far, I don't find much fault with what he's said about how he's approaching it.


    "This is a different world" (5.00 / 1) (#38)
    by mcl on Sat May 23, 2009 at 03:32:17 PM EST
    TRANSLATION: 19 thugs hijacking three airplanes eliminates 800 years of habeas corpus as the foundation of western common law since the Magna Carta of 1215.


    Seriously. What????


    apparently terrorism (none / 0) (#41)
    by of1000Kings on Sat May 23, 2009 at 04:03:13 PM EST
    and terrorist didn't exist before the past decade...

    how lucky to have lived in the previous few thousand years when the word terrorism was never ever a word...


    I agree (none / 0) (#7)
    by TruthMatters on Sat May 23, 2009 at 08:23:34 AM EST
    Boumediene said Bush Adminisration didn't meet a minimum standard.

    Obama can get his military commissions there, everyone arguing against military commissions as inherently wrong will lose in the end.

    the 2006 decisions of Hamdan and Boumediene will ensure that the detainess and future detainess get process, the Supreme Court has more then once now said, that process does not have to be in Art. III courts.

    we already have more then just Art. III courts already. They will get tried in military commissions that will pass the Boumediene threshold.

    and eventually we will setup a new regular National Security Court. with stand practices and procedures and when we do that will meet the genea convention and Hamdan/Boumediene thresholds.


    we don't need a (5.00 / 2) (#29)
    by Jeralyn on Sat May 23, 2009 at 11:07:33 AM EST
    national security court and that's a terrible idea.

    We agree (none / 0) (#32)
    by Big Tent Democrat on Sat May 23, 2009 at 11:55:44 AM EST
    Indeed, there is little I agree with in the comment that purports to be agreeing with me.

    My comment is strictly about the process for designation of "enemy combatant" status.


    Star Chamber (5.00 / 1) (#39)
    by mcl on Sat May 23, 2009 at 03:44:06 PM EST
    And eventually we will setup a new National Security Court."

    Shorter version: We need a Star Chamber.

    No we don't.

    "Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon and has become a symbol of the misuse and abuse of power by the English monarchy and courts."

    Sound familiar?

    What is so terrible about hijacking three airplanes that it requires America to dismantle the system of jurisprudence that has served Western civilization for the last 800 years through civil wars, the Black Death, the threat of Naziism, the threat of Communism, attacks from Japan on U.S. soil, and the threat of atomic annihilation by 3,000 soviet nuclear warheads?



    No doubt Obama's proposed "preventive detention" policy will have an abundant number of defenders in Teh Village of MSM pundits and Blogosphere 1.0. But TL is in a different class, as a progressive law blog, and it's surprising to see one of TL's front page writers (BTD) fervently defend any aspect of "preventive detention". I mean, sure, like Obama says: "people can disagree without being disagreeable" but, please, not about something this unreasonable.

    Maybe the current unprecedented lack of defense for the rule of law within progressive circles is what we get when we combine two parallel lines of magical thinking: "it's different when the United States does it" and "it's different when Obama does it".

    It would follow that, with Obama as POTUS, many reprehensible policies could now take on the appearance of being doubly "different": firstly, by the ongoing perception of Obama's transcendent exceptionalism and, secondly, by the longstanding perception of America's inherent exceptionalism.  

    Exceptionalism is the perception that a country, society, institution, movement, or time period [or person] is "exceptional" (i.e., unusual or extraordinary) in some way and thus does not conform to normal rules or general principles. Used in this sense, the term reflects a belief formed by lived experience, ideology, perceptual frames, or perspectives influenced by knowledge (or lack thereof) of historical or comparative circumstances. *Wikipedia

    Greenwald writes a lot about the hazards of American exceptionalism, but I haven't seen him specifically address it in terms of the double whammy effect we get when we combine that with Obama's exceptionalism.


    That's not the history (none / 0) (#6)
    by Bemused on Sat May 23, 2009 at 07:48:09 AM EST
     of how ancient, classical, medieval or  modern societies dealt with people or groups treated external enemies.

       Generally, they killed or enslaved them if they were able and used violence to render the enemies less capable if thet were not.

      Before citing emperors Trajan and Julian as supposed support for your position, you might want to read bout how they treated Dacians, Franks, Persians and in Julians's case his methods of interacting with Christians he viewed as enemies of Roman interests..


    Looking forward and not back... (none / 0) (#12)
    by lambert on Sat May 23, 2009 at 08:53:44 AM EST
    What's the best way forward here? Can we re-establish the principle of presumption of innocence? Can we mark up the policy so badly it doesn't proliferate all over everything, as exective aggrandizement tends to do? What do we do?

    Historically speaking (none / 0) (#13)
    by Steve M on Sat May 23, 2009 at 09:06:32 AM EST
    How have countries in the Western legal tradition treated non-citizens who they consider enemies?  Have they afforded such people the same presumption of innocence?

    No presumption (none / 0) (#17)
    by gyrfalcon on Sat May 23, 2009 at 09:45:36 AM EST
    of innocence even for citizens, as I understand it, in most of the other Western justice systems, which are in many ways substantially different from ours.

    For instance, judges, as in the Princess Diana death in France, are charged with running their own investigations and are finders of fact, not procedural mediators.  I believe there's no right to have any attorney, at least under police questioning, in many countries.  In the Netherlands, which I understand is not atypical, plea bargaining is expressly forbidden.

    I don't know the details of what you ask about, only that many of the rules and procedures are surprisingly different from ours in many respects.

    I don't even know whether citizens and non-citizens have different legal rights, even implicitly.  They may well not make that distinction.  There have been several high-profile trials of terrorists in Europe, and my vague memory is that some have been convicted and some not.  I don't believe all of these have been citizens of the countries they've been tried in.


    Utterly false analogy (5.00 / 1) (#42)
    by mcl on Sat May 23, 2009 at 04:13:17 PM EST
    Please cite another Western judicial system which allows

    • Evidence obtained under torture to be introduced in court;

    • The accused to be kidnapped without charges and held in a secret location;

    • The accused to be denied access to a trial, denied access to a lawyer, and denied due process, while being tortured;

    • The accused to be held indefinitely in a secret location without charges or due process;

    • A secret court proceeding made up of hand-picked military personnel.

    Can you think of one (1) other Western judicial system which allows this?

    Guanatamo - Fair and Balanced? (none / 0) (#14)
    by john horse on Sat May 23, 2009 at 09:15:48 AM EST
    re: "The idea that you can imprison people indefinitely who have neither been charged nor convicted of a crime is abhorrent to our system of justice, our values, our history, our heritage and our humanity." - Jeralyn

    When the military tribunal system was created Donald Rumsfeld claimed that "It is balanced, it is fair, it is designed to produce just outcomes."

    As Jeralyn points out the presumption of innocence is part of our legal system because it is needed to produce "fair" and "just outcomes".  So why isn't it also required for military tribunals?  Holding people indefinitely who have not been charged or convicted of a crime is a de facto sentence.

    Military tribunals are "fair" and "balanced" in the same way that Fox News is "fair and balanced."

    Were people detained by (none / 0) (#21)
    by oculus on Sat May 23, 2009 at 10:19:43 AM EST
    The allies in WWII afforded a a hrg?  We must have detained some who were not in uniform and not on a battlefield. If they got a hrg. Did they get to present evidence?

    Military tribunal in 1942 (5.00 / 1) (#40)
    by mcl on Sat May 23, 2009 at 03:53:48 PM EST
    "In 1942, a U-boat landed eight German soldiers on Long Island, New York, under the cover of darkness. Dressed as civilians, their mission was to sabotage U.S. defense factories. The operation failed when two of the men defected and informed authorities. The FBI arrested the saboteurs and turned them over to the U.S. military for trial. Shortly after the arrest, President Franklin D. Roosevelt authorized the use of military tribunals for trying those who entered the country to commit sabotage.

    "Within one month of capture, the eight Germans were tried by a military tribunal of army officers. The prosecution team consisted of 10 military lawyers. A single military lawyer, Colonel Kenneth Royall, represented the defendants. The tribunal found all eight guilty. Six were sentenced to death by electrocution, and the two defectors were sentenced to prison terms.

    "The defendants appealed to the U.S. Supreme Court claiming that under the Milligan decision, they should have been tried in a U.S. civilian criminal court. Meeting in a special summer session, the court heard arguments and issued a unanimous opinion. Writing for the court in Ex Parte Quirin, Chief Justice Harlan Fiske Stone denied the appeal."

    More here.

    In 1942 America faced the threat of the Germany navy, 60 Nazi tank divisions, 2,000 Luftwaffe fighters and dive bombers, the Imperial Japanese Navy, the Imperial Japanese Army, and more than a million Wehrmacht troops.

    In 2001 America faced the threat of...19 guys armed with box cutters.


    The chance (none / 0) (#30)
    by Steve M on Sat May 23, 2009 at 11:26:58 AM EST
    that our present situation will ever be viewed as comparable to WWII or the Civil War is approximately zero.  You might as well start comparing people to Hitler while you're at it.