Now, I must admit that Bauer made statements following his release (Iran accused Bauer and two other American hikers in that region of being spies) that most Americans would not find agreeable, and Kirchick jumps on them heavily -- and with some justification:
On July 31, 2009, you're traversing a mountain trail in Iraqi Kurdistan, near the Iranian border. You're with one of your best friends and your girlfriend. Suddenly a group of Iranian border guards capture you, and the next thing you know you're in Tehran's infamous Evin prison accused of "illegal entry" and "espionage."But, it is the next paragraph that I do find objectionable and, frankly, untrue: "Mr. Bauer didn't name any of the "political prisoners" allegedly held in America's jails—because there aren't any." He goes on:
Your girlfriend is kept in solitary confinement and you can see her only for an hour each day. The Iranian government prevents you from contacting your family for almost a year, at which point they decide to let your mother visit you for two days at a Tehran hotel.
While your captors treat you humanely and provide three square meals a day, your Iranian co-prisoners aren't so lucky. Every night you hear their screams. Evin is the world's most notorious torture dungeon, where political dissidents (men and women) are routinely raped, beaten and subjected to all manner of physical and psychological abuse.
Ahmad Batebi, a student activist who spent 17 months in solitary confinement there, reports that guards kicked him in the teeth, dunked his head into a toilet "stopped up with feces," and whipped his back and testicles with a cable. When he tried to sleep, they slashed his arms with a knife and rubbed salt in the wounds.
As you sit in this hellhole, no less than the president of the United States takes up your cause, insisting that you "never worked for the United States government," that you're "simply open-minded and adventurous" and "represent the best of America and of the human spirit."
Following two years of strenuous work on the part of committed American diplomats, you are freed on $500,000 bail, paid by the billionaire Sultan of Oman. And what is the first thing you say upon your release?
"Two years in prison is too long and we sincerely hope for the freedom of other political prisoners and other unjustly imprisoned people in America and Iran."
The American justice system is far from perfect. But it is transparent, offers the right of appeal, and is routinely challenged by a free press and active civil society. Moreover, it doesn't imprison people for their political beliefs.I wish that were true. I wish that there were real transparency, and I wish that the appeals courts actually took more time to examine convictions that have occurred in kangaroo courts.
For example, I suspect that Brad Wade and Brad Cooper would laugh at the notion that American courts were "transparent." Because prosecutors are immune from serious punishment for acts of blatant misconduct, hiding exculpatory evidence, lying, and suborning perjury (sorry, but disbarment is not serious compared to innocent people going to prison) we have seen U.S. courts -- state and federal -- turn into charnal houses for the innocent.
A recent article in the New York Times spelled out what has been happening:
After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.Furthermore, it is clear that many prosecutions in the USA are done for political purposes or to appeal to a political constituency. A couple of examples include the federal trials of the police officers in the Rodney King beating case in Los Angeles and of Limerick Nelson, who was acquitted in state court of stabbing a rabbinical student to death in Brooklyn.
Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
In both cases, the defendants had been acquitted at the state level, and while the verdicts were unpopular, constitutional prohibitions against double jeopardy should have been honored. Instead -- with approval of the courts -- the defendants were charged in federal court with different "crimes" for the same acts.
Not surprisingly, jurors got political message in both cases and the defendants were found guilty. The second time around, the system "got it right." It does not matter that in the process of "getting it right," courts and prosecutors destroyed one of the most important legal protections that anyone could have.
At the founding of this country, the law followed the natural rights views of the great English jurist William Blackstone, and the bedrock of criminal law was "mens rea, or Latin for "a guilty mind." Intent was a big portion of the law, and prosecutors were not to pursue criminal charges unless they also could prove that an individual intended to commit a crime, and did not just ignorantly run afoul of some arbitrary rules.
That situation no longer exists, as the Wall Street Journal recently pointed out in a stunning article:
For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."The paper then takes the case of Wade Martin in Alaska:
This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.
As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.
When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 sea otters he had recently sold for $50 apiece.The article gives a number of other cases in which conduct by individuals that they never even thought might violate the law led either to prison time or criminal convictions and probation. Why does this happen? It happens because American prosecutors have become all-powerful. Lew Rockwell writes:
Mr. Martin, 50 years old, readily admitted making the sale. "Then, they told me the buyer wasn't a native," he recalls.
The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.
He pleaded guilty in 2008. The government didn't have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.
Those raised on a steady diet of courtroom television shows believe that they are true to the way justice is meted out. This is completely naive. Trials in federal criminal cases are rare. Nine in ten cases are settled in pleas like the above case. Only 3 percent of the cases go to trial. Among those that go to trial, the defendant wins once in every 212 times.He continues:
What this means is that there is no way out for the accused. The prosecutors have all the power. Not even the judge has discretion because lawmakers have mostly taken that liberality away in the name of cracking down on crime. This happened all through the 1980s and 1990s, and the prosecutorial dictatorship has entrenched itself to become the norm since 2001. For the last ten years, the police state has had free rein.
It was not "liberals" or "conservatives" who did this. It was both parties acting with massive support of the American public, as tyrants in the public sector licked their chops. This was a result of security-minded madness, and even now hardly anyone cares.
Today, every single citizen, no matter how free he or she may feel in daily life, is in reality a sitting duck. You can be made to disappear. There is essentially no way you can escape once the feds sweep you into their net. There is no justice. The total states of the past used to pretend to have trial-based convictions. The total state of the present doesn’t even bother. It just puts a sack over your head and takes you away.When Rockwell writes that we now are in a police state, he is not using hyperbole. The USA IS a police state. It has by far the highest number of people incarcerated (more than two million) of any country in the world and a fourth of the entire world's prison population.
People are expected not only to know all of the laws that are passed (the courts have ruled that "ignorance of the law is no excuse") and the ONLY people who are not punished for ignorance of the law are police, prosecutors, and judges. I am not kidding.
Thus, we often see prosecutions made for political -- yes, political -- reasons. Why did Michael Nifong pursue rape charges against the three Duke students he knew were innocent of any crimes? Because he wanted to win an election, and he knew that his actions, no matter how outrageous, were popular with a number of political constituencies, including the "Progressive" crowd at the New York Times, which supported him until his case utterly fell apart.
And Rockwell is correct that all of this is a prescription for tyranny, the very kind of tyranny that Kirchick claims does not exist in the USA, only in rogue countries like Iran. How did this come about? It is very simple: Progressives, including people like Herbert Croly, who founded The New Republic, believed that individuals should not have protections against State power because a society could "progress" only if the State could advance the agendas of the intelligentsia without interference from "obsolete" documents like the U.S. Constitution.
Thus, most of the rights that were guaranteed (not granted, as Progressives like to claim) by the Constitution now either have been breached or have disappeared altogether. We literally are at the mercy of police, prosecutors, and judges, who are free to frame whom they like and unless one can raise hundreds of thousands of dollars quickly, people who are targeted pretty much disappear.
None of this excuses what Iran did to the three hikers, nor does it explain or justify everything that Bauer told the media. For that matter, many of the same leftist groups with whom Bauer is associated have been front-and-center in the destruction of rights in this country.
Iran is governed by a rogue and cruel regime and I have no use for people who engage in torture, beatings, and imprisonment of people simply for their political or religious beliefs. However, we really should not kid ourselves that Americans are above acting like the Iranians. From the CIA renditions to Guantanamo to the daily abuses of the law and outright decency that prosecutors commit while they are "just doing their jobs," people in this country who legally operate without boundaries also are capable of cruelty and outright murder.