The New Legal Principle: The Presumption of Guilt
By Dennis Loo (2/28/14)
You’ve all heard the lesson in school or in citizenship classes, repeated many times with great pride: what distinguishes the US from tyrannies is that we are all treated as “innocent until proven guilty.”
Candidate Barack Obama made a special point of invoking this principle while running for the presidency in 2007-8. After convincing millions that the presumption of innocence and his opposition to torture and to warrantless surveillance were what distinguished him from the despised Bush White House and why we should vote for him, he has … since … stopped talking about it.
Instead, in his speeches since assuming office, he’s spoken about the importance of “balancing” our freedoms and liberties with “security.” He’s warned that there are those who are “out to harm the United States” and that these people cannot be tried and he will not release them.
Here is what he said in his May 21, 2009 speech:
[T]here remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people… We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted [he means obtained through torture], but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
Let me repeat: I am not going to release individuals who endanger the American people.
Somehow “balance” is now the applicable term rather than the core principle of “innocent until proven guilty.” Somehow while most people weren’t looking, the Bureau of Pre-Crime took over the US government and is guiding its work. It is now permissible under this former Constitutional Law Professor to punish people on the basis of what they might do rather than what they have done. Let us assume that what Obama said above was true of every single one of these dozens of people that he refuses to try and will never release – that they all received al Qaeda training and/or they have “made it clear that they want to kill Americans” – something that we know is not true of dozens that he won’t release. (See Andy Worthington’s work on Guantanamo detainees). But let us assume that what Obama claimed is actually true for each and every one of these individuals. This raises the question: How do you legally hold someone without charges and without a trial forever on the basis of something they might do in the future?
By slyly presenting his policy of preventive detention in this way, what this former Constitutional Professor is doing is overturning the principle that you cannot be punished for what you have not yet done. If this were the only manifestation of this precedent being set by him, it would be serious enough. But Obama’s preventive detention is only part of an overall shift of enormous magnitude in governance. While most of the mainstream media have been snoozing, the new legal principle in statecraft is that everyone is assumed to be guilty.
The right of kings has now been re-established, when most people weren’t looking, and what the king (president) decides is right, is now the law, even though the king (president) is not being supervised by any other branch of government and is acting solely under executive powers. The POTUS can now publicly maintain a “kill list” in which he is judge, jury and executioner, and we and the world are supposed to sleep at night secure that this POTUS and every future POTUS will use this unfettered power to assassinate only really bad people. Thousands have died by drones, hundreds of them children. But of course, all of these children must have been really bad people.
As Obama said about the CIA in 2009, these are fine men and women and he isn’t going to “lawyer them up” by investigating and prosecuting those who are guilty of torture. Here were his words in January 2009 shortly before taking office:
I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.
No one is above the law, he says. That’s a good thing since it’s the core principle of jurisprudence since the Magna Carta of nearly 900 years ago when the king finally accepted that there were limits to his powers and that everyone including the king must be subordinate to the law. This is the meaning of the “rule of law.”
The reason this is so critical is that prior to establishing the rule of law, the king or other executive power (such as a president) could exercise his or her powers arbitrarily and capriciously, executing or imprisoning anyone they pleased, as they pleased, without any supervision and without having to abide by laws that protect individuals and groups from the arbitrary use of executive powers over them.
Right after affirming his adherence to the rule of law above, however, Obama proceeded to violate the rule of law. He declared that because he doesn’t believe that we should look “backwards” - which is the only thing you can do if you’re going to follow the law, prosecute people for crimes that they have already committed as opposed to those that they haven’t done – the CIA has “extraordinarily talented people” who are keeping Americans safe and they should feel safe from being lawyered up. In other words, "as POTUS I will never stop saying that I believe in the rule of law, but I am not going to apply that principle. Instead, I’m going to look forward." And what he is saying here and has in fact been doing, is exactly this, punishing those who he designates as criminals based on what they might do in the future. That is forward looking all right.
This is what underpins the philosophy behind public order policies. Public order policies began being employed in the 1970s in Europe and have since spread worldwide. They are designed to control populations based on precluding people from doing things rather than punishing people for breaking the law. In other words, instead of only being subject to governmental repression if you violate the law, under public order policies everyone is now treated as a suspect and their actions and even thoughts can be suppressed because who they are or what they might believe are contrary to what those in authority want.
Public order policies is a term that very few people have even heard and yet it precisely describes what has happened to both public and private authorities and their use of their coercive and persuasive powers. If the public were to be told that the “rule of law” is no longer the guiding principle they would be justifiably alarmed and resist these changes. What they have been told instead are deliberate lies intended to disarm the people in the face of these dramatic and consequential changes. We have been told that incursions on civil liberties and the elimination of privacy through NSA spying are necessary because of the “war on terror.” Anti-state terrorists, in other words, real as they are, are being used principally by governments such as the US as the cover for carrying out public order policies. The WOT did not begin until after 9/11, whereas public order policies date from the 1970s and massive warrantless surveillance began al least as early as the 1990s.
When Obama claims that the NSA is only spying on Americans when they have a warrant, when he says that he is protecting the rule of law, and when he says that he is “balancing” people’s rights to privacy and civil liberties with the need for “security,” he is telling people what he knows the people expect from their government. He is, however, knowingly lying about all of these things.
The presumption of innocence is the hallmark of a society that recognizes civil liberties. This is not something that came about because some brilliant people thought it would be an especially fine idea. It is not some abstract principle without any real concrete, living consequences. You don’t sacrifice the principle because some individual or group of people are especially horrid and you want to punish them even though you don’t have the evidence to prove it so you decide to ignore the principle that evidence is necessary to punish someone. The presumption of innocence is a principle that had to be fought for and for which many people sacrificed their livelihoods and lives because in the absence of it we would all be living under tyrants. The definition of tyranny is one in which authorities can overlook the rule of law.
Principles are like that: they have to be struggled for against tremendous resistance. They don’t come ready-made. They are not something you can just pop into the oven and in a few minutes they’re done. Fighting for principles is hard and it’s supposed to be hard because upholding principles is not the popular position to take.
Those who have faced those in power and not blinked but taken the consequences - when all around them there were those near and dear to them as well as friends and strangers who told them to be quiet - we and all of humanity now and forever owe the greatest debt to. Without them we would have no principles except that “might makes right.”
For centuries people have had to die for principles and others have had to face ridicule, social isolation, the ruining of their careers, threats against and the loss of loved ones, beatings and torture. If the right thing to do were easy, then we would have no need for principles. People could just go merrily along on the path of least resistance, pleased as punch with the company of so many others dancing along with them. “What wonderful patriots we all are! What fine fellows and gals we are, for we all agree with one another, which just proves that what we all agree on must be right!” Going along with popular opinion and/or going along with authority are easy. Anyone can do it unthinkingly.
What humanity needs, especially now, are those who are willing to break with convention and stand up against what authorities are doing. The basis for mobilizing very large numbers of people over time to support these efforts is there because what the authorities are actually doing and why they are doing it are diametrically opposed to what they are claiming that they are doing. The reason why authorities are saying the exact opposite of what they are doing to the public is because they know that if they told the people the truth that the people would demand the end to these authorities’ power over us.
In any society at any time the norms of the society are set by those who set the terms overall. The terms are not set by the mainstream. The mainstream follows the lead of those who are the opinion-leaders and opinion-makers. Those in the leading positions now are carrying out profoundly illegal and immoral policies, including the use of torture, assassinations, pre-emptive wars (wars of aggression), and spying on everyone. People in the mainstream are correspondingly acting out these policies and philosophy. The most unhinged of these such as Michael Nunn and George Zimmerman are acting out the attitudes and behaviors they see being promoted by those in leading positions in our society. The behavior of US forces in war theaters such as Afghanistan and Iraq and prison camps like Guantanamo finds its corollary in the murderous actions of people like Nunn, Zimmerman, James Holmes - the Aurora, Colorado movie theatre killer - and Sandy Hook, Connecticut elementary school killer Adam Lanza. When the POTUS has a kill list, then why should we be shocked when certain individuals domestically decide that they too can take things into their own hands and assassinate those who they despise?
We need a minority of people to set new terms to change the overall atmosphere and alter the balance of political forces. Humanity has always depended upon the courage, determination, and far-sightedness of those who can see the big picture and who act on behalf of the public interest rather than either feeding at the trough in their self-interest or cowardly running and hiding in the face of difficulty and danger. Groups like World Can’t Wait are committed to this.
This site aims to accomplish two related goals. First, it complements Dennis Loo's book Globalization and the Demolition of Society so that people reading the book can get more deeply into it. (See navigation bar above, labeled "GDS Book Annotations"). We believe that his book is a landmark, providing a solid foundation for politics of a new path. Taking such a path is critical to humanity and the planet's future. As his book's dust jacket states:
[F]ree market fundamentalism - also known as neoliberalism - makes us not more secure or prosperous: it tears the social fabric and undermines security, leading inevitably to disasters on the individual, regional, and global levels.
Neoliberalism is based on the mantra that market forces should run everything. It aims to eliminate job and income security, the social safety net (including welfare and other social guarantees), unions, pensions, public services, and the governmental regulation of corporations. It consequently undermines the basis for people to voluntarily cooperate with authority as almost everyone is increasingly left by themselves to face gargantuan private interests, with governmental and corporate authority ever more indifferent to the public’s welfare.
Those in charge of our collective fates in government and business personify a heartless system based on profit and plunder. They have been relentlessly instituting profoundly immoral and unjust policies even while they insist that they are doing the opposite. We, on the other hand, stand for and are fighting for a radically different system and set of values than this.
Second, in order to get at the truth and because the ways in which humanity's historic striving for understanding and its capacity to wonder and imagine are very rich and diverse, we seek to reflect that richness and diversity on our site. See "About Us" on navigation bar. We intend to be engaging and compelling, as the best investigative journalism and art are, and relentlessly scientific, rigorous, and direct, as those who cherish the truth are. We believe that we can be both accessible and sophisticated. As Loo lays out in his book,
Defeating the empire is not something that occurs only on the literal battlefield. It is also something that is determined throughout the continuum of battles over many issues, including: ideas; philosophy; forms of organization and leadership in economy, politics, and other realms; ways of arguing; ways of responding to and respecting empirical data; interest in truth as opposed to expedience; how people and the environment should be treated; the nature of relations among people (e.g., between women and men, different races and ethnicities, rich and poor countries, etc.); ways of responding to criticism and ideas that are not your own; ways of handling one’s own errors and those of others; and more, all the way up through how warfare is carried out. The contrast between the methods and goals of the neoliberals and those of us who seek an entirely different world is stark. (Globalization and the Demolition of Society, Pp. 326-7)