Is there a more revealing phenomenon than the debate about whether or not to bring those accused of terrorist acts into federal criminal courts for trial?
This is not a single issue: It involves basic questions about why we believe or reject the idea of "Rights," about who is capable of voicing useful opinion and about the value of those voices of opinion we hear so often.
So why ought we believe in "Rights?"
Of course, there is that thing we learned about in school called "The Bill of Rights" and the constitution and we learned about how that nasty King George threw helpless colonists in jail, where they rotted, but compared to Osma Bin Laden and his crew, Old King George and his merry band of red coats look pretty benign, especially with the passage of centuries.
The forces of government didn't look all that benign in the eighteenth century when British soldiers and their hired guns chopped off colonial heads and spiked them on pikes in front of their encampments. In those days, the face of governmental authority looked pretty fearsome to those who wrote the constitution; those founding fathers had good reason to resist government power. King George looked a lot like Dick Cheney to them.
The British government, like most governments, insisted unrestrained power of throwing people into jail was the lesser of two evils: sure, you may occasionally throw someone into jail who had done nothing wrong except walking down the wrong street at the wrong time, but it was a case of greatest good for the greatest number. Some individuals would suffer unjustly, but society would gain order and safety and predictability.
The argument which prevailed back then, and for much (but not throughout all American history,) was you can still have order and safety without nailing the hapless and innocent along the way.
An unexpected benefit of the process which attempts to treat the accused as innocent until proven guilty is it made the masses believe they might actually be treated fairly if they were falsely accused.
The other benefit of this process of painstakingly trying to be fair was it made the system of trying to determine what actually happened and who did what look legitimate.
While elsewhere in the world, all that matters is who your family knows, how effectively you can grease the palms of judges or some other governmental official, in this country, we tried for that lofty and often impossible goal, to seek the truth.
We didn't always try all that hard.
Soon after the constitution was adopted the government decided it was just too scary to allow criticism of the government and the Alien and Sedition acts were passed. During the communist witch hunts of the 1950's Senator Joseph McCarthy managed to convince enough people for some of the time, the threat to our government and our way of life was so immediate and so extreme, the danger so clear and present, we did not need to bother trying to distinguish the innocent from the guilty.
The analogy was to the approach to lethal infection. The little buggers which can kill you are invisible and it's better to use antisepsis and antibiotics which may kill a lot of innocent and harmless bacteria if it means you can kill the bad ones. We had just got through killing a lot of innocent people at Hiroshima and that seemed to end the war and to spare a lot of American lives, so most people were okay with the killing of innocents on some occasions.
So no Right is absolute. Not even the right of Free Speach, as Justice Holmes argued, you have no right to shout "Fire" in a crowded theater.
There is risk in respecting rights, in being deliberate, trying to be fair and there is always delay and there is something unsatisfying about entertaining doubts.
On the other hand, there is risk to the rush to judgment to the "Aw he's guilty, string him up," approach, emotionally satisfying as that may be at the time.
Two of the greatest American statements on the value of deliberation as opposed to vituperation and swift action are The Oxbow Incident and, of course, To Kill A Mockingbird. Stephen Colbert, who often I just don't get recently did one of the most astonishing and ingenious treatments of this whole issue, in which, split screen, he argued against rushing to judgment against the underpants bomber, using the words of Atticus Finch, from the famous trial scene in Mockingbird. His highly reasoned side, his better angels side, manages to convince his more impulsive and impassioned side it makes more sense to try the accused than to simply lock him away or execute him. In fact, he manages to convince the emotional Colbert the guy is actually innocent. Once he has persuaded his lesser half, of course, the cerebral, principled side says, "Naw, of course he's guilty, nail him."
So why do we do this deliberative, possibly risky, dance?
It has a lot in common with why we do funerals. It's not for the dead;it's for the living. Some part of us thinks the recently departed is still there, hovering overhead, being grateful and entertained, but as someone who has dealt with the dead, I gotta tell you, I'm not at all convinced. Those people are gone.
So what's the point of the whole performance?
We do it to convince ourselves we are better than those who do nasty things. We likely will never convince the perpetrators, who only rarely internalize the idea. All the guy on trial is feeling is fear and how am I going to get out of this and what are they going to do to me? The accused are not likely to be impressed by our deliberations, so it's not for the accused.
And we do it for the group--to convince ourselves there is something real in the idea of "Justice."
We like the idea you can judge and you can render a just verdict, just as we like the idea of a just God. If there is no such thing as justice, what do you have in the world? You've got the law of the jungle, as seen on Animal Planet, where there no good guys and no bad guys. Hideous hyenas eat adorable little lion cubs or antelope or baby elephants and nothing bad happens to them. In fact, the hyenas survive, thrive and multiply.
Animal Planet is a very disturbing experience.
We want to live in a world where the good survive and the bad are eliminated.
So now we come to survival, which is the argument made most famously by Dick Cheney and more recently by Scott Brown and always by Rush Limbaugh, and every week by the television program 24. Oh, yeah, these sources say, you can worry about those nice ideas of deliberative justice and handling the accused with kid gloves while they blow up atom bombs in Washington, DC and New York, and worse yet, Peoria.
Then what have you got left to protect?
Even Abraham Lincoln, our greatest President, suspended habeus corpus during the Civll War.
Of course, then you are arguing that the shoe bomber and the underwear bomber and even the 911 crowd were as much a threat to the survival of the nation as Jubal Early's confederate army charging up to Fort Stevens, inside the District of Columbia. You are saying that right now our nation is as imperiled as it was during the Civil War. Same argument Senator McCarthy made. All those communists infecting our government were just seconds away from destroying our nation from within. It's the crying fire in the crowded theater argument: We cannot afford "Rights" when it's the right of the guy with his hands around your throat.
So that's the argument of those who say no trials in American criminal courts; lock up the accused and throw away the key.
Of course, those making that argument would object to the description, "The Accused." For them, it's "The Guilty."
Can there be any doubt about the guilt of the shoe bomber or the underwear bomber, why waste the time and money on a trial to determine guilt, when guilt is so obvious?
The answer is, because the trial is for us. It demonstrates in the most dramatic way possible the difference between them and us. It demonstrates that difference to those who may not know a lot about what these guys did. And it's great theater, just as the Nuremberg Trials were great theater. It lays out for the world to see, just how slimy these bastards really were.
And when they get up to defend themselves, they feel all self justified, but they look even worse.
And some of the things they say to elucidate just how they justify themselves to themselves are instructive to later generations: "I was just following orders." Well, it didn't work for those Nazi scumbags and it's not going to work for you, Lt. Caulley. And it wont' work for any American soldier who is told to mow down a line of women and children villagers, so he can refuse to do it and say, "Court martial me for refusing to obey your outrageous order. I'll see you at Nuremberg, Sir."
The principle argument is the accused do not "Deserve" the rights of American citizens accused of crimes, as if we are giving these demons a gift.
But of course, we are not doing it for the accused; we are giving that gift to ourselves. Reading the accused Miranda rights does not make us into wusses. It makes us stronger. It does nothing much for the guy listening. And if you really think every interaction with the terrorist on the plane is a scene from 24, well then you haven't been on the plane. Nobody was shouting out Miranda when they are wrestling with the underpants bomber.
Calling these guys prisoners of war is a gross insult to prisoners of war. Even if this were a war, which it is not. Wars end. Wars on crime, wars on cancer, wars on drugs do not end, because they are not wars.
Okay, the practical objections: It's too costly, causes too much disruption--both of which are pretty revealing arguments coming from the mouths of Rudolph Giuliani (a former prosecutor) and Charles Krauthammer (a pseudo quasi lawyer.)
We have over 3,000 dead, the towers in rubble and it's too expensive and disruptive to the life of New York City to hold a Nuremberg trial about this?
I suppose it would have been no surprise if the Germans felt it was too much trouble to hold those trials after the war, but, fortunately, they were not given the choice. The Americans and the British and the Russians, who had some pretty tough financial problems of their own in the immediate aftermath of World War II thought it was worth the expense and the disruption to put those monsters on trial.
Those guys, Goering, Hess, Goebells the whole lot proclaimed themselves soldiers who fought the holy war for the Fatherland. But would anyone today argue those trials, which laid out the details of what they did, how they did it and the suffering they caused were not worth the inconvenience and the cost?
The most serious objection is holding those trials just a stone's throw from the World Trade Center is a practical one: It would attract every holy jihadist on the planet to New York City with his bomb or whatever he's got in his underpants.
This of course, is the argument of fear.
It's curious this argument comes from the mouths of Scott Brown, Charles Krauthammer, Rush Limbaugh who are always the first to proclaim how brave and tough and relentless and fearless they are in the pursuit of the bad guys while that lily livered Obama and all those who sail with him are too fearful and meek to protect the good people of this land of the free and home of the brave.
The trial of those accused of the assassination of Abraham Lincoln occurred in the immediate aftermath of the Civl War, in Washington, DC and they were hanged within the District of Columbia, not far from Ford's Theater and the White House.
And all that happened when the wounds were fresh, the city still aswarm with Southern spies and sympathizers and it wasn't even completely clear all the Southerners who supported The Cause were actually finished fighting.
But somehow, Americans then were brave enough to risk the wrath of those who had threatened the nation, murdered the President and still wished ill for those who fought for Union and the abolition of slavery. If any time in our history is a good basis for comparison, it's that perilous time just after Lincoln's assassination, when the nation was greviously wounded, by no means safely delivered from danger and angry voices resounded throughout Washington, DC the North and the South. Fortunately, leaders back then were men of fortitude. They would have put the Limbaugh-Krauthammer-Giuliani crowd on their butts on the sidewalk.
In other words, when it came time to stand up for justice, we did not flinch, despite the risks.
Now, what are the advantages to a public trial? All of the above and the idea that we can say to a world which will undoubtedly be watching on television in Iraq, Iran, Palestine, Syria, Pakistan, Indonesia and even in Afghanistan, wherever they actually have electricity, we can show what these guys did, or tried to do, and we can remind everyone about the horror of September 11 while we still have American soldiers in the field, and we can put out those images just as the images of the Holocaust were shown and we can show why we are better and different.
Some have objected we'll be giving the defendants a soap box from which they can make speeches. We did that in Nuremberg, and those miscreants buried themselves with their own words.
Of course, whatever the terrorists say will get an "Amen, brother, Ali Akbar," among true believers among the Palestinians, in the caves on the Afghan/Pakistan border. But what do we care what those maniacs think?
Do we or do we not have a righteous cause? If we have a righteous cause, then why do we want to lock it away behind military courts and make it invisible?
Now, I am prepared to admit what Rush Limbaugh, Charles Krauthammer and Scott Brown are not prepared to admit: When it comes to knowing exactly what happens in the criminal justice system, I have no real life experience.
Not that lack of knowing what you are talking about stops the lunatic fringe. On December 5, 2009, a throng of them gathered at Foley Square in lower Manhattan and cries of "Holder's gotta go!" and "Communist" and "Traitor!" and "Lynch Holder!" were documented by the print media. Relatives of people who died on September 11, who somehow are presumed to have special authority , proclaimed it would be wrong to try the accuse 9/11 terrorists in Manhattan because "We need to tell Eric Holder that we will be victims no more."
One woman asked, "How can someone whos is not an American have any right to our rights? Holder wants to help the terrorists."
When it comes to the likelihood of accused escaping justice in our very dysfunctional criminal justice system, I take as my primary source, The Wire, which is real life non fiction masquerading as fiction. If you watch all five seasons, you see how criminals game that system and how they escape punishment. Having watched the wire does not make me an expert in our criminal justice system, but it has provided an experience. I have, over the course of that instructive post graduate course, gained at least some insight to how the system fails and how, less often, but still occasionally, it can be made to succeed.
What I think I learned is there are times the prosecutors have got the scum bags dead to rights and scum bags go to jail.
I may have too much faith, but I suspect Eric Holder knows he holds all the cards and the accused will not walk free.
On the other hand, what we are saying to the world is we put people on trial because we are brave enough to take the risk the accused will walk free. And that makes us a lot braver than the Rush Limbaugh's, the Dick Cheney's, the Scott Brown's and the Rudoph Giuliani's would are so terrified of the terrorists they will not allow them on American soil, will not allow them to be tried in open court.
Which is, of course where we can do them and all those who sail with them, the most harm. There is nothing worse for a bad product than good advertising and what these terrorists are trying to sell is the ultimate in a bad product.
Do we want to dignify these guys with the label "Enemy Combatants?" or "Prisoner of War?" Prisoners of war are soldiers we treat according to the Geneva Convention, whom we exchange at the end of the war. They are Hogan's Heroes.
And, of course, this is no war.
The 9/11 terrorists may have thought of themselves as warriors but we ought not agree with them. Even if their motives were religious or psychopathic or even if they were brainwashed or simply confused, what they did made them criminals, not soldiers.
Where better to dispense with criminals than in open court, where the world can really see who these self described freedom fighters really are?
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