So I just clicked over to Feministe and found to my surprise a comment thread going utterly nutbar over the question of trying terrorists in the SDNY. It’s full of the usual paeans to the American Constitution (which, Sir John A. Macdonald help me, I will never fully understand, there are tons of things WRONG with the American Constitution, but whatever) and its vaunted protections. These are countered by a bunch of people who apparently both read Feministe and believe George W. Bush showed excellent judgment in the establishment of Guatanamo (riddle me that one, cognitive dissonance).
In any event, I wanted to say this: both these sides seem to me to be overstating things. Even if conducted under the FRE etc., this trial will be a show trial. It is political theatre. There is just about zero chance that a jury or even, if it’s possible to elect a bench trial (and I don’t know, not a criminal lawyer), a judge, will not convict this person.
Now, in fact, all trials are theatre in a sense – thus why the courtroom has proved very fruitful as a source of narrative, and not just in America. (See: Bleak House.) It’s simply that here the climax will not center around the question of whether the accused will be found guilty – he will – but rather whether Americans can sort of retroactively justify the existence of Guantanamo, and pretty much everything that happened over the last eight years, under the arches of the American constitution, with that lady with the scales keeping an eye on the affair.
The answer, of course, is that it might justify itself to some doubting Thomas Americans, because it can retrofit the whole sordid story of the treatment of enemy combatants within the grand narrative of American Justice. But for everyone else: not so much.
I said when this was announced that I considered it a smart move, and I do, but I considered it such only because it’s politically adept. It isn’t, in the least, guaranteed to bring “justice.” It kind of horrifies me how unconcerned most Americans are about Guantanamo and other abuses. I shouldn’t be surprised, but at the level of someone who, at the end of the day cannot entirely give up on abstract justice – well, I am. Because one of the things I always liked about here was the Big Dreams part, the aspiring to greatness. It’s why I can watch the West Wing even though the characters are frequently talking about the US as though no other country understands the realities the way that it does. It’s why I loved last year’s Election Night. It’s why I do sometimes say I’m disappointed in Obama, because I too projected that abstract faith onto him.
But yeah, these show trials (assuming there will be more than the one): they aren’t about doing the right thing, per se. The right thing would have been to no longer have a Guantanamo, to indict Dick Cheney and all the rest. But I’m not holding my breath for anyone to do that.
I saw William Kunstler: Disturbing the Universe yesterday (a great movie if you’re feeling down on society in general and being a lawyer in particular) and this reminds me of a great clip from one of his speeches at the end about how we value “legality” at the expense of actual justice. How the instant credibility granted by the legal process can completely obscure whether the outcome was in fact correct or desirable:
“I suspect [that more people] have gone to their deaths through a legal system
than through all the illegalities in the history of man: 6 million people
in Europe during the Third Reich. Legal. Sacco and Vanzetti. Legal.
The hundreds of great trials throughout the South where black men were condemned
to death. All legal. Jesus. Legal. Socrates. Legal. …All tyrants learn
that it is far better to do this thing through some semblance of legality than
to do it without that pretense.”
Of course, it’s not preferable to continue keeping people in Gitmo indefinitely with no access to legal process, representation, knowledge of the charges against them (when there are charges), etc. I guess it’s going to be interesting to watch this all go down.
p.s. The reason we lionize the Constitution when it fails people like this is so that if and when it fails us, we have it on record that we expected better. This is America, dammit!
Wait a minute. The trial is not to justify the imprisonment without charges and disgraceful conduct of the US military and law enforcement authorities at Guantanamo. The trial is to give this man his day in court. Surely you can believe that he appears to be guilty and, if he is, he deserves punishment *and also* believe that holding people for years without charges and subject to torture and inhumane treatment is wrong and an insult to the concept of justice.
What are the alternatives to trying him? Keeping him locked up without charges? Of course not. Letting him go? If prosecutors think they can make a case against him, they have the right to try to do so. And if they have enough evidence to make charges persuasive enough for a trial, the defendant has the right to a trial in public with an attorney to defend him.
There are cases in which the outcome is pretty much a foregone conclusion. Should we then not bother with a trial? It is crucial to any system of justice that even defendants with a world of evidence against them be given the right to be tried in public. This man has already been denied justice for way too long. Moreover, we can glean information and come to terms with the crimes he is alleged to have committed through the mechanism of a trial. For the defendant and for society at large, there is no alternative.
The Constitution isn’t just a description of abstract justice. For all of its flaws, it lays out a procedure to make justice happen in the real world. The fact that the system sometimes fails or that the citizens it protects are too stupid and bigoted to appreciate it doesn’t make it any less powerful or inspiring.
I tend to go with Greenwald on this: deigning to give criminal trials only to the defendants you know you can convict, while the others get military commissions without the same pesky rules of evidence or burdens of proof … bah.
For those who don’t feel like clicking the link, a particularly nauseating nugget: “Omar Khadr — the Canadian “child soldier” imprisoned at Guantanamo for the last seven years, since he was 15 years old, for allegedly throwing a grenade at an American soldier in Afghanistan (that’s apparently “terrorism”) and the subject of a difficult-to-watch video of him weeping like the child he is while being interrogated — will reportedly be one of those denied a trial and instead allowed only a military commission” …
I completely agree with Mischief Manager. The only way to come close to achieving justice is through procedural safeguards. Trying suspected terrorists under the rubric of the Constitution is a huge step forward following the Bush debacle. All foundational legal documents are flawed, but it’s important that we at least follow some sort of law other than lex talionis in this instance. As it happens, those same procedural safeguards may screw us because it’s unclear to me that we have any admissible evidence because of the use of torture. So my concern is that the jury is going to convict because KSM is clearly guilty, but using evidence that should have been thrown out and thereby setting a horrendous precedent.
Yeah, the whole story makes me ill, x.trapnel. And the general degree to which it has been swept under the rug really makes me question any claims of altruism associated with the affair.
I’m not sure we could draw a frame of reference large enough, within our current court system, to give this man a fair trial.
In the course of protecting our interests, the interests of American citizens, America has been a malicious force in the lives of people around the world for a long time. It would be naive to think that those actions would not have consequences. While it is horrific that the retribution was directed toward innocent civilians, but the people who make the decisions are well-insulated to both threat and persuasion.
Does that make sense even? I think this guy and terrorists in general are wrong, but because they kill innocent people and because terrorism, as a tactic doesn’t work, not because they don’t have valid reasons to be pissed off.
Painting this trial as a black and white stuggle between good and evil only serves to maintain the status quo which brought us to this moment in the first place.
@PSoul and Bellacoker: Okay, but then what do we do? A trial is in no way an altruistic act and no one says it is. It’s an act designed to create justice, which is supposed to lead to a moral society. And to the extent that anyone is arguing that this is a black and white struggle about good vs evil, guess what? That’s what prosecutors do in pretty much every big trial-and a lot of small ones.
My question remains: what are we supposed to do with this guy? Remember that the decision whether or not to go to trial rests with the defendant, so if he wants a judge-only trial, he can have one, and if he chooses to plead out, he can skip the trial entirely. I would bet that he wants his day in court, and God knows he’s earned it.
I think Fat Louie is right on. Try him, but make sure the rules of evidence are followed to the letter. If the government can’t make its case because they’ve violated those rules, well then, maybe they won’t do it next time. A finding of prosecutorial misconduct would be a great vindication of our justice system, and exactly what the Bush Justice Department would deserve. Of course, they’re not around any more to take the hit. But the lesson stands regardless.
I dunno, MM, “an act designed to create justice, which is supposed to lead to a moral society” sounds pretty altruistic to me.
MM:
I don’t know, I don’t have all of the answers. I think we have done a lot of what we can by electing a President who seems to understand that the world is a nuanced place which cannot be expected to bow down before American arrogance.
If I were Queen of the World and everything, though, I would ask the International Court of Justice at the Hauge to step in and review these cases. We’ve acknowledged for quite a while that this matter is too big for the American justice system, and that is the next step up.
Hmm. Interesting idea. Still, the crimes alleged to have been committed weren’t against the world but against people and places in the US. It’s not quite like Nuremberg, which really was a larger stage.
I don’t know all of the intricacies, MM. Off the top of my head, Al Quaeda (sp?) has attacked in America, Spain, Britain, and Pakistan. I think it would be virtuous and play well to our enemies and allies if we were able to admit that any trial held in America is going to be a kangaroo court, and that we don’t want that.
Also, ever situation is different and if the International Court is only good for one set of circumstances and cannot be adapted to new situations, what good is it anyway?
The fact is if this man were a citizen we would not be here because he wouldn’t have been imprisoned without trial for 8 years. The whole thing, to me, is an enormous farce at this point even if the man is guilty as sin.
@bellacoker: But I thought the US didn’t acknowledge the authority of the International Court? If they were to take on the case, the IC would have to investigate the torture complaints against Cheney & co, as well as any other complaints that might come up. I was under the impression that the US doesn’t accept IC jurisdiction because the Bush administration wanted to prevent that from happening.
@bluebears: Ok, but again I ask: what should we do? Just let him go? Isn’t it progress that we’re moving this to a civilian court rather than a secret military one?
I’d love to see the IC put Bush & Co. on trial, but that’s a separate proceeding from this guy’s individual situation. I haven’t heard an outcry from other countries which have been victimized by Quaeda terrorism to have an international trial, although I agree that it’s worth doing.
Besides, Giuliani is against this trial, which can only mean it’s a good thing.
@mm: yeah, I’m for letting them go. I realize that that’s a complicated proposition because there’s an issue with WHERE they would go, but purely in the abstract I would release them. What evidence can they produce against them at trial that wouldn’t be horribly tainted at this point?
I’d prefer to see the process work through. Any judge worth the name will insist on untainted evidence. It seems very possible to me that there is such evidence. But anything that comes from illegal conduct should be tossed, and it should happen in public, whether Americans in the red states like it or not. If the laws don’t work in the hard cases, they’re no good at all.
“But anything that comes from illegal conduct should be tossed”
But if these people spent years and years getting tortured and held without trial, isn’t everything the US could possibly have on them going to be inadmissible, either because it was gathered under torture or because they were arrested and not charged and it’s not like any soldiers in Afghanistan were getting warrants from judges before breaking into houses to try to find evidence.
I find the whole thing to be somewhat of a logical vortex. Let’s say a kid throws a grenade at US soldiers in Afghanistan. Is that illegal? Can he be tried for trying to kill a bunch of Americans–wait, I mean, they aren’t just Americans, they’re American soldiers. So if this kid throws a grenade in a country that isn’t the US, where they may not have laws against throwing grenades at invading troops, how can he have broken a law? And even if it is illegal to throw grenades in Afghanistan, why would he be tried in the US for a crime that took place in an entirely other country? And if it’s illegal for the kid to throw grenades at US soldiers, it would be important to know why it’s illegal to throw grenades at US soldiers. Is it illegal because murder is illegal? If that’s the case, then surely all the US soldiers that ever killed anyone in Afghanistan have to be similarly tried for murder, right?
That’s why a not-American, or an International, court would be preferable to an American one. Because if the kid didn’t break any laws in the US then he can’t be tried here, but presumably the US considers trying to kill its soldiers a crime in general, or against the world or the moral order or the universe or something. So who is the victim–against whom did this kid commit a crime? The soldiers? The United States? If it’s the soldiers, then presumably they’d have to be tried for anyone they killed in Afghanistan, because then this situation is framed as individuals against individuals. But if it’s the US in general, then certainly the victim of the crime cannot also be expected to be the judge of the trial. Right?
And this is why I am studying Shakespeare instead of law. I can’t read this stuff without wanting to fling monkey poop at the constitution and the whole conception of the legal system as it exists today. It makes me so sad and angry and frustrated that I just end up sobbing or going “la la la time to read some young adult fantasy novels la la la!”
Cimorene, if only I had had the same kind of foresight. I told my boss once that I “didn’t believe in” the area of law he specialized in.
That literally made me laugh out loud. I’m still silently chuckling on the inside.
Also, yesterday my partner apparently spent some time with Thomas Jefferson’s wikipedia page, learning about his rape affair with a slave child (she was 14!). In bed, at 4 AM, he’s about to go to sleep while I have to finish up a book about Nazis and biopower, and he brings this up. I couldn’t stop myself, soon I was on a roll about why America as a country is totally illegitimate and how anyone who talks about the constitution as if it is anything but some laws written by rapists is willfully ignoring reality. We don’t let criminals write the laws! That would be crazy talk! Why should we follow the laws that a bunch of rapist person-owning assholes wrote! And the whole “time and the place, kids” thing just makes me angry, because the man took Sally Hemmings to France, where she wasn’t his slave! In France they didn’t have slaves! And yet!
Oh god. I seriously hate America, ya’ll.
PennyA:
Sounds like a win-win to me.