Friday, July 20, 2007


(Please see the post of July 15 [below] for the facts of the trial.)

A basic principle of the criminal justice system of the United States is codified in Coffin v. United States, a case decided by the Supreme Court in 1895.

“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....” (Majority opinion written by Mr. Justice Edward Douglass White).

The Holy Land Foundation defendants are innocent, by definition. They have not been found guilty of any crime.

Yet today (July 20), a Google search for “Holy Land Foundation Trial” yields, as its first item, a website of the Anti-Defamation League which states categorically, “Treasury Department Secretary Paul O'Neill named the HLF, as well as two Palestinian-based financial organizations, as ‘Hamas operated organizations’” (not named them as “suspected” Hamas organizations).

The second Google item is on the website of the right-wing “Frontiers of Freedom,” and is titled “Guilty: Hamas & Holy Land Foundation,” in which writer Gary Fitleberg states, “The Holy Land Foundation is contributing to terrorism in the Middle East and internationally.”

Today’s third Google item is from the Dallas Morning News (Monday, July 16). It begins with an incendiary statement from a dismissed potential juror who said he was afraid for his family if he were to be part of a jury that found the HLF defendants guilty. ‘“I don't put anything past that group,” he said, referring to Hamas, the militant Palestinian group designated as a terrorist organization by the U.S. government.’

The DMN story ends with, “Another woman, a retiree from a publishing company, said she might have a problem presuming the defendants were guilty until proven innocent. She said she had family serving in the military in Iraq.”

And so on.

The Bush Administration has, by its actions and its rhetoric, changed the basic principle of American jurisprudence from the “presumption of innocence in favor of the accused” to a principle of governmental authority to declare the accused guilty by fiat and try them later in a court of law—in this case, six years later—on charges the government takes years to construct. But the real tragedy is that, because of the Administration’s insistence that accusations of criminality can now be treated as accusations of “acts of war,” (or is it vice versa?) the American public (propagandized by the corporate media) has already judged the accused in the court of public opinion, a court with no evidence, no possibility for the defendants to confront the witnesses against them, and no opportunity for the defendants to present their own evidence.

Margaret Kohn, associate professor of political science at the University of Florida, Gainesville, says in an article about the legal process in the notorious Guantanamo detention center that,

The new, congressionally sanctioned military commissions are reminiscent of Franz Kafka's The Trial. In the novel, Joseph K. must defend himself against evidence and charges that are never described to him as he navigates a legal system that is highly bureaucratic and utterly incomprehensible. The Trial describes a world in which arbitrary power masquerades as law. [emphasis added] In the Kafkaesque world of the Bush administration, the ‘war on terrorism’ is neither war nor peace, therefore neither civilian nor military law is applicable.” 1

We the people, in our collective fear of “terrorism,” have given the custodians of our national identity and interest carte blanche to strike down by executive order the assumptions that have protected our rights and maintained order in this country since its founding.

The greatest tragedy of our following the Administration in its rush to judgment, of our laying aside our principles of “law and order,” is that we are harmed equally with the persons we harm in our failure to act on principle instead of acting out of fear. Sally Haslanger, Professor of Linguistics and Philosophy at Massachusetts Institute of Technology, in an article about our communal reaction to the tragedy of 9/11 wrote:

To restore our pride, our self-respect and the respect of others, we should ask: are the values of democracy and freedom made manifest in our actions? Are we demonstrating the power of law and reason, and the importance of the individual? Or are we simply reacting to a threat in its own terms? Such concerns may seem naïve when dealing with others who are willing to resort to atrocities. But even in the face of atrocious criminals we should respond in a way guided by principles that accord them humanity. 2

The Holy Land Foundation is innocent of any “atrocities.” But the Holy Land Foundation trial raises a myriad of questions about the way our government is operating, about the nature of war, about the definition of “terrorism” as opposed to “resistance.” But for us, for each individual citizen of the United States, the basic question is, “How important is freedom under the law?” Does not our living under the law demand that we be “guided by principles that accord [all of us] humanity?”

1. Kohn, Margaret. “Due Process and Empire's Law: Hamdan v. Rumsfeld.” Dissent Magazine, Winter 2007.
2. Haslanger, Sally. “Gender, Patriotism and the Events of 9/11.” Peace Review 15:4 (2003),457-461.