America or Kafka?

From Scott Horton's speech yesterday in Berlin, Germany:

Ladies and gentlemen, I ask you to read your newspaper today very carefully. In it you will find another now the third report (PDF) prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort. The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony. What attitude towards justice does this reveal?

I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice. That is something quite different. It may well be that Majid Khan is a serious criminal responsible for crimes against humanity. It may well be that he used or promoted the use of terror as a device. If that is so, he should be charged and given a fair chance to defend himself. This trial, fairly run, will vindicate my nation's counterterrorism efforts. It will show those who are held for heinous criminals, if they are heinous criminals. It would promote the view in the world that my nation has and pursues a just cause, and treats those in its power with justice, though the justice be severe.

In the end justice is a glorious thing and the evasion of justice is shameful. But we must remember, as both Robert H. Jackson and Hannah Arendt have taught us, that this process is not simply about justice. It is also about the appearance of justice. Failing that, we run a severe risk. The penal colony may now be an island. But soon it may become the world.