The controversy over North Korea’s supposed hacking of Sony in retaliation for The Interview actually goes a long way in showing the brilliance of our American ancestors who demanded the enactment of the Bill of Rights after the federal government was called into existence with the Constitution.
Why did our ancestors insist on passage of the Fourth, Fifth, Sixth, and Eight Amendments? Because they knew that the federal government would inevitably attract officials who would love nothing more than to punish people without having to go through the hassles of a jury trial, one in which they would be required to prove a person’s guilt beyond a reasonable doubt before they could do bad things to him.
So, to make sure everyone got the message, our ancestors got those four amendments enacted to make it very clear that before federal officials could punish people, they would be required to follow well-established procedures, such as due process of law, trial by jury, proof beyond a reasonable doubt, right to counsel, presumption of innocence, and so forth.
Does anyone feel that our ancestors were wrongheaded and that federal officials today would never do such a thing?
Well, take a look at what President Obama and his national-security establishment have done to North Korean officials. Convinced that the North Koreans were behind the Sony hack, they’ve imposed sanctions on them to punish them.
Yet, where is the evidence that convinced them that the North Koreans are guilty? They won’t show it to anyone. They just say that Americans should trust them and defer to their authority. The reasoning is that communists are guilty of whatever U.S. national-security state officials say they’re guilty of.
It’s that mindset that our ancestors knew would end up in the federal government. That’s what drove them to enact the Bill of Rights. They weren’t interested in trusting federal officials. The Bill of Rights is an expression of deep distrust of federal officials.
Yes, I know, someone can say that it wouldn’t have been practical to indict the North Korean officials and prosecute them in a U.S. court of law. Fair enough.
But President Obama could have done the second-best thing. He could have gone to Congress, the legislative branch of the federal government, requested the imposition of sanctions, and presented the evidence that he and his national-security team say supposedly points in the direction of North Korea. At least then there would have been an element of justice and fairness prior to punishing people for a crime that they just might not have committed. (See, for example: https://firstlook.org/theintercept/2015/01/01/north-koreasony-story-shows-eager-u-s-media-still-regurgitate-government-claims) and https://www.bloomberg.com/politics/features/2014-12-04/did-north-korea-hack-sony-theories-on-sony-hacking and https://www.emptywheel.net/2014/12/30/as-fbis-amerithrax-case-crumbles-bureau-digs-in-on-north-korea-claims.)
The irony is that in punishing North Korea officials without producing a single bit of evidence to justify the punishment, President Obama is behaving just like the North Korean president, who does the same thing to people in his country. In other words, the North Korean president does the precise thing that our ancestors believed that federal officials would do if they hadn’t enacted the Bill of Rights — i.e., punish people without trial by jury, right to confront witnesses, proof beyond a reasonable doubt, etc.) That’s what President Obama has done with his punishment of North Korean officials.
Of course, one might respond that President Obama behaves like a dictator only when he’s dealing with other rulers but that he and his national-security team wholeheartedly embrace the principles in the Bill of Rights in normal criminal prosecutions.
What about Gitmo? The people in that prison camp are charged with terrorism, which is a federal criminal offense. Where is the embrace of the Bill of Right there? It’s non-existent. In fact, let’s not forget the precise reason that President Bush and his national-security team located their new “judicial” center in Cuba rather than the United States — so that the Pentagon and the CIA would NOT have to embrace the Constitution and the Bill of Rights.
That’s why the “judicial” system at Gitmo closely resembles the “judicial” system in North Korea — i.e., no jury trials, no effective assistance of counsel, secret proceedings, tortured confessions, hearsay, no right to confront witnesses, kangaroo military tribunals, and due process of law. In fact, notice that the Pentagon/CIA Gitmo system denies people one of the most basic procedural rights, one expressly enumerated in the Bill of Rights — the right to a speedy trial. Even though some of the accused have been in jail now for some 13 years at Gitmo, the U.S. national-security state apparatus steadfastly refuses to permit them a trial, even one by a kangaroo, North-Korea-like court.
In fact, notice that in all the nations that the Pentagon and the CIA have invaded and “rebuilt,” including Iraq and Afghanistan, not one single time have the Pentagon and the CIA ever established a judicial system that is modeled on that of the U.S. Constitution. It’s always been the exact opposite — a massive military establishment serving as the police, arbitrary arrests, warrantless searches and raids on people’s homes and businesses, tortured confessions, extra-judicial executions, secret surveillance, and the like.
Americans living today should thank their lucky stars for the wisdom, foresight, and courage of the American people living in 1789. If it hadn’t been for them, there is little doubt that the United States would have ended up with a judicial system for all federal crimes resembling those in Guantanamo Bay and North Korea.