Reply #22: When is a Prosecution Political? [View All]

[L. Coyote]

When is a Prosecution Political?
Scott Horton - February 7, 2008 - http://harpers.org/archive/2008/02/hbc-90002330

Once a year, in January, the U.S. Government asks me to give a day-long presentation to Foreign Service Officers, FBI agents and Justice Department officials on the legal systems of the post-Soviet world to help prepare them for a posting overseas in nations with a legal system that will certainly seem unfamiliar to them. For several years I have included in this, at the request of the MLAT and legal attachés (that is, Justice Department officials who will be liaisons with law enforcement officials in the countries) and the State Department human rights officers, a section entitled “How to Spot a Political Prosecution.”

In the nations of the former Soviet Union, of course, political prosecutions are rampant. This goes back to the Imperial era, but it also has its doctrinal anchoring in Lenin’s attitude about justice. For the Bolsheviks, the idea of neutral and dispassionate justice is all a bunch of sentimental liberal hogwash. As every good Communist knows, justice is a tool of the class and of the party. It is used to bolster the party and its political control over the state. Individuals may therefore be prosecuted because they presented a threat to the rule of the party, or simply because it is politically expedient to do so. The trial of the great poet Joseph Brodsky, from which I quoted yesterday, is a paradigm case which I used to teach in some of my seminars. With the collapse of communism and the adoption of liberal democratic models across the region, however, these doctrinal positions were rejected. Of course, some traditions are slow to die. And one of the problems faced by American justice officials is the proliferation of requests for assistance in connection with cases that look suspiciously like political persecution. What are the flashpoints to examine in making a determination of whether a case is politically motivated?

It now strikes me that this mode of analysis has some obvious relevance to things going on in the United States. But here are the questions I present for consideration by American Justice officials trying to grapple with the question in a foreign setting:

1.

Identity of the Subject. Is the subject an opposition political figure of some sort? Is he a member of an ethnic or religious minority .

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