I've just finished reading a New Yorker article about the furor regarding Attorney General Eric Holder's decision to try Khalid Sheikh Mohammed in United States criminal courts.
The timbre of the article leaves me with an image of the writer, Jane Mayer, with one hand on her hip and the other pointing particularly at a phrase in the Declaration of Independence.
She hopes you'll recall that many of the men who sculpted the constitution also signed, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights," with emphasis on "all men" and "Creator-endowed unalienable Rights."
I'll briefly summarize and provide context. Eric Holder's first argument for holding the cases in federal criminal courts, rather than by military commission, reduces to the fact that his prosecutors have a better case than the military does. They have produced evidence without resorting to torture. Evidence via torture is just about all the military prosecutors have, and they hardly have that.
As Amy Jeffress, Holder's national-security adviser, is quoted in the article, "There was no file for each detainee. The information was scattered all over the government. You'd look at what the Department of Defense had, and it was something, but, as a prosecutor, it wasn’t what you’d like to see as evidence. . . . It was pretty thin stuff."
Holder's second argument is simply sound public relations: much of the world considers the military commission system established by George Bush to be illegitimate, and certainly the Islamic world is concerned about convictions based on evidence obtained via torture.
As Holder is quoted, "Values matter in this fight. We need to give those who might follow these mad men a good sense of what America is, and what America can be. We are militarily strong, but we are morally stronger."
The legal argument against holding the cases by military commission rather than in criminal courts, where the defendants will be afforded all rights under the constitution, is that Khalid Sheikh Mohammed, et al, are enemy combatants and therefore needn't be afforded said rights.
The article quotes Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attacks, 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."
Or as Scott Brown's campaign asserted, "Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree."
Some common people agree with McCarthy and Brown. Ms. Mayer quotes a protestor, Carolyn Walton, "How can someone who is not an American have any right to our rights? Holder wants to help the terrorists."
America is Universal Rights
But our American identity depends on the idea that our country upholds Rights we profess are universal ("all men") and absolute ("inalienable", "endowed by their Creator"). We believe we were given these Rights not because we are American, but because we are Human.
We love our country because it is one of the few that exists precisely to protect those Rights. America is not merely a space of land: it's a set of ideas that hold all people as created equal, endowed by their Creator with certain inalienable Rights. That set of ideas, and not our territory or economic might, has justified our intervention in the affairs of the world.
The United States crossed oceans twice to defend the inalienable Rights of humanity against dictators who sought absolute power. The United States stood against the spread of Stalinism, because Stalin spit on Russians' Creator-endowed Rights. The United States intervened in Kuwait when a dictator extended his reach.
The United States assisted Afghanis twice: once to defend civilians against Soviet aggression, and once to free citizens from the grip of totalitarians who stripped them of their Rights. The United States supported Iranians last summer as their government violated their Creator-endowed Rights to speak freely, to gather and to govern themselves.
We act contrary to our American identity when we avert our eyes to abuse of inalienable Rights or when we support dictators who impinge the very Rights we uphold (Pinochet, Noriega, Maximilio Hernadez). We disgrace ourselves when we treat prisoners in a way that implies, "We will summarily rob you of your Creator-endowed Rights to assure ours."
We disgrace ourselves if we say, "All men are created equal, endowed by their Creator with certain inalienable Rights, if by 'all men' you mean US Citizens."
If we are Americans, then we must not deny those Rights to any person. Not even if we believe they're a terrorist. Not even if we believe they're a war criminal. Not even if we believe they're our enemy.
Only if we prove them guilty -- by a fair trial, by a jury of their peers, with evidence not extracted by violating their Creator-endowed inalienable Rights -- may we call them felons and punish them appropriately.
If we can act justly at Nuremberg when trying some of the most depraved humans in recent history, then surely we can act justly when trying Pakistani villagers.
Answering the Skeptic
A good skeptic will ask, What if Khalid Sheikh Mohammed is found innocent? An argument for the military commissions is the relative certainty that they will convict.
But truly, if the best prosecutors in the United States cannot convince twelve Americans that Khalid Sheikh Mohammed is guilty, then maybe he is actually innocent. Few events could damage the United States' efforts to protect the Rights of humanity than if we execute an innocent foreigner.
If a military commission executes a man who is later exonerated, then for the next century, each time the United States attempts to defend the rights of humans in Cambodia or China, we will be firmly reminded of our own violations.
If the United States wishes to preserve its moral capital, it must remain above reproach.
The upside to this whole debate is that Holder's prosecutors claim they have sound evidence. If we allow the Justice Department to try Khalid Sheikh Mohammed in US criminal court and he is found guilty, he will be punished with death, just as if he were convicted by a military tribunal.
But by trying him in US criminal court, we uphold our American identity as the defender of the inalienable Rights of all humanity.
PS. To be fair, there's a very practical argument against trying Khalid Sheikh Mohammed in criminal court: the case will cost too much, with estimates ranging from a few hundred million dollars to a billion. Clearly those costs must be controlled, and decreased. Even at the low-end, 300 million dollars for a trial is absurd. On the other hand, we've spent around a billion dollars improving and servicing the detainment facilities at Guantanamo since the first prisoners arrived there eight years ago. I address money only to predict anyone who deflects the moral argument in favor of arguing finances. The financial cost will be high either way, but the longer we delay, the more the prisoners cost us.
No comments:
Post a Comment