"The constitutional presumption is for openness in the courts, but we have to ask whether we are really honoring that," said Laurie Levenson, a former federal prosecutor and now law professor at Loyola Law School in Los Angeles. "What are the reasons for so many cases remaining under seal?"This is the issue:
"What makes the American criminal justice system different from so many others in the world is our willingness to cast some sunshine on the process, but if you can't see it, you can't really criticize it," Levenson said.
Despite the Sixth Amendment's guarantee of public trials, nearly all records are being kept secret for more than 5,000 defendants who completed their journey through the federal courts over the last three years. Instances of such secrecy more than doubled from 2003 to 2005.Most of those cases, interestingly, involved drug prosecutions, not terrorism prosecutions. This is why Walter Cronkite (!) (not the cultural icon he once was, but still....) would say:
An Associated Press investigation found, and court observers agree, that most of these defendants are cooperating government witnesses, but the secrecy surrounding their records prevents the public from knowing details of their plea bargains with the government.
Americans are paying too high a price in lives and liberty for a failing war on drugs about which our leaders have lost all sense of proportion.I have been listening to a radio program on the local Pacifica station, "Century of Lies," which has convinced me the "war on drugs" is no more credible or reasonable than the "war on terror." Mr. Cronkite makes much the same points, in a shorter space:
While the politicians stutter and stall - while they chase their losses by claiming we could win this war if only we committed more resources, jailed more people and knocked down more doors - the Drug Policy Alliance continues to tell the American people the truth - "the way it is."The rhetoric Mr. Cronkite critiques is the rhetoric of William F. Buckley and William Kristol: if the "big idea," the "postulates," are simply given enough emphasis, simply enforced correctly by the people charged with maintaining them, then utopia will ensue. It's hard not to see it as a variation on the favorite religious American pasttime: millenialism. If we only work hard enough, and follow the laws strictly enough, the kingdom of God will follow.
The odd historical quirk is, that's the message of Deuteronomy, the "restatement" (lawyers will understand that reference) of the law of Moses that was to restore the fortunes of Israel after the Exile.
Except, of course, America has never been in Exile. The most our ancestors did was leave "Babylon" in order to establish a "new order" in a "new country." And that that has been our problem ever since, is not entirely wrong. But that isn't the message of the Deuteronomist; not entirely. They (it was a school, not a single person) emphasized adherence to the law, but as a measure of identity for a generation raised in Babylon, not in Israel. It was a way of recovering the 12 tribes' roots, not a way of establishing God's reign across the earth. That was always understood to be God's prerogative; adherence to the law was the way Israel kept the covenant with God, and prepared the way in the desert, made ready for the new thing God was, and would be, doing.
It was what gave them the strength to rebuild Jerusalem. Think New Orleans, and you begin to get the picture. The Deuternomists were not millenialists; they were realists. They were struggling, just as people are struggling in New Orleans today. And they were creating a new identity on the foundations of the old, the better to re-establish what had been lost.
The more we, in America, imagine something has been lost, the more we are led astray by those who identify the problem in the "other," and in the biggest "other" which alone, we are told, can save us: the "Big Idea." Drugs is a prime example. The opium trade was not a result of evil drug addicts spreading their vileness across a pure and virginal globe. It was invented and employed by the British Empire to subdue the Chinese. The idea that the CIA was behind the crack epidemic in this country seems far-fetched and ludicrous, until you factor in that bit of acknowledged world history.
Drugs and drug user are the horrible "other" which threatens the group. I remember racist literature from my childhood about black men drooling at the prospect of sex with virginal white women. The characterization of drug users today is little different from that depiction. Consider what you know about drug users from your own experience, v. what you think from movies, TV, and "anti-drug programs." And then consider the issue of how much control is exerted over your feelings, thoughts, and reactions to the problem, based solely on fear.
And remember that fear thrives on secrecy.
The greatest irony is that this kind of fear and secrecy seems to have a Protesant basis. One of the great strengths of Protesantism was to remove power from a professional class with exclusive access to knowledge (Luther was one of the first to translate the Latin bible into a language people actually used) and disseminate that knowledge more widely. It also removed much of the "mystery" of the priestly class, making the laity both more responsible for their faith, and more directly connected to their God. Their complaint against Roman Catholicism was that it relied too much on fear and secrecy to function.
And now, of course, Protestants like George W. Bush rely on that fear and secrecy, to maintain power.
As the French say: Plus çe la change, plus çe la meme chôse. And as Pogo said: "We have met the enemy...."