The Reasoned Review

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Terrorists = Criminals

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Everyone is talking, with good reason, about the lengthy article by Jane Mayer in this week’s New Yorker, which describes, in excruciating detail, the “debate” raging within the White House over whether “Terror suspects” are or are not criminals (and thus, are or are not entitled to constitutional protection). Mayer does a pretty good job of describing the various points of view, but one wishes she would get to the point of the article, which is that Attorney General Eric Holder finds himself assailed and unpopular because of his belief in *gasp* the rule of law.

I especially liked Ms. Mayer’s opening:

On December 5th, several hundred people gathered in Foley Square, in lower Manhattan, and withstood a drenching rainstorm for two hours in order to send a message to Attorney General Eric Holder. A JumboTron, set up by the protesters, played clips of Holder’s recent testimony before Congress, in which he explained his decision to hold the trial of Khalid Sheikh Mohammed—the self-proclaimed planner of the terrorist attacks of September 11, 2001—and four co-conspirators in the colonnaded federal courthouse flanking the square, rather than in a military commission at Guantánamo Bay, Cuba. Members of the crowd shouted at the screen: “Holder’s gotta go!”; “Arrogant bastard!”; “Communist!”Greg Manning, whose wife, Laura, was severely burned in the World Trade Center attacks, stood before the crowd and said, “Thousands are already dead because of Khalid Sheikh Mohammed’s choices. We do not want to see . . . hundreds of thousands dead because of the Attorney General’s choices.”

Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attacks, also gave a speech, declaring that Holder didn’t “understand what rule of law has always been in wartime.” He said, “It’s military commissions. It’s not to wrap our enemies in our Bill of Rights.”

“Traitor!” someone shouted.

Here one sees quite clearly the histrionics and appeals to emotion on which the “right-wing” apparently prides itself. It’s worth noting that these are the exact same arguments put forth by Ms. Sarah Palin in her infamous “Tea Party” speech a few days ago. A transcript hasn’t found its way online, but the gist of her remarks were that we oughtn’t give our “enemies” the benefit of the “freedoms” which they “hate” – and this includes such basic ideas such as due process, trial by jury and so forth. She even made the absurd assertion that only “US citizens” are entitled to constitutional protection – a remark which, I’m sure, made legal immigrants the country over squirm in discomfort.

I suppose it wouldn’t be worth pointing out that the Constitution makes no mention of “citizens” or even “persons” – theoretically, the rights it enumerates are universal. The language states that “Congress shall make no law that…”, which, if one were to take an inclusionist standpoint, would apply to all persons, regardless of nationality or jurisdiction. But, of course, this would make war unconstitutional, so most people conveniently forget these clauses.

Ms. Mayer gives the “Republican” talking points much space in her article, quoting a charming individual as calling Mr. Holder a “Communist”, giving Mr. Giuliani room to call Mr. Holder’s suggestion that “terror suspects” be tried as civilians as “almost criminal” – even quoting one protester as demanding they “lynch Holder!”

The rest of the article delves into the mess of organizing trials for these suspects. The centerpiece trial – that of Khalid Sheik Mohammad, suspected of “masterminding” the 9/11 attacks – would be thrown out of any civilian court immediately. Mr. Mohammad was severely tortured, including being waterboarded an astonishing 183 consecutive times. Several other suspects can claim similar mistreatment. In a country which follows the rule of law, confessions extracted via torture are illegitimate and cannot be used as evidence.

Also, no state wants to be the site of the trial – certainly not New York, where the attacks occurred. Mayor Bloomberg finally put the kibosh on that suggestion when it became clear such a move would be “political suicide”. Other mayors and governors have come to the same conclusion.

Ms. Mayer gets points for mentioning this inconvenient fact, which I’m sure the military commissions hard-ons wish would simply go away:

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo.


It’s difficult to imagine the mindset of those who demand extra-legal military commissions for terrorism suspects. India, Pakistan, Britain, Spain and a raft of other countries that have far worse terror problems than we do  find civilian trials quite enough. India, for instance, prosecuted a 26/11 gunman right in Mumbai, meters away from where he carried out his deadly attack. Furthermore, constantly declaring that “we’re at war” and “terrorists are enemy soldiers” ends up giving these criminals far more legitimacy than they deserve. Consider, for a moment, which would be better for your self-esteem, and for the strength of your organization: being treated as a common criminal, or having the country which you attempted to attack thrown into a tizzy and creating special legal tribunals to deal with your “threat”.

If one could follow the “tough-guy” mentality toward combating terrorism to its psychological root, I think we would find power-worship and a Manichean “good guy – bad guy” worldview.  In order to believe you are truly “good”, it is necessary that your enemies be the embodiment of evil. In a sense, the more evil your enemies are, the more good you become as a result. And the easiest way to dehumanize your enemies is to keep them out of plain view, to deny them “human rights” – thus sending the clear message that they are not quite human.

It is clear how effective this can be as a political strategy, and it was put to wide use in Ms. Palin’s recent speech. Moral ambiguity never makes a good storyline – most people like their stories cut and dry: good guys over here, bad guys over there. The truth, of course, is rarely that simple, but great political rewards lie in store for those who can make its seem so.

However in the end it remains clear that those who wish to blow up buildings are of the same stuff as those who wish to murder people or commit vandalism – that is, they are criminals. Ask yourself whether we needed a military commission to try Timothy McVeigh.

Or are commissions only for brown people?

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