The Long Climb Back
No Associated Press content was harmed in the writing of this post
Eric Holder’s recent announcement on detainees was covered mainly for his decision to bring Khalid Sheikh Mohammed (KSM) to New York for trial. Less noted was the designation of military tribunals for five others. Civil libertarians objected to it, with Glen Greenwald doing a fine job summarizing their argument (“what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.”)
In addition to system shopping, where government decides which proceeding to use based on the maximum legitimacy conferred while still largely guaranteeing a conviction, Jonathan Hafetz pointed out (via) that there is also the much larger “indefinite detention” system. Since we have held many of these people for years and years now, with no demonstrated intention to attempt anything like a final disposition of their cases, it seems fairly obvious that the president’s intent to implement indefinite detention is already in place.
These are huge problems and they will not go away on their own. It’s good to see organizations like the ACLU and the Center for Constitutional Rights filing lawsuits to establish human rights for them, force disclosure of sordid details and otherwise pressure the government to own up to its past with the goal of changing its behavior going forward. Their efforts are a great and necessary service.
That said, I think the fears for the implications to our system of law do not take into account the obstacles created by years of relentless neoconservative fearmongering. Right wing ideologues used the shock and uncertainty after 9/11 to yank public opinion to the right. The unspoken bargain seemed to be that they would largely be given free reign to do as they pleased - even if it clearly violated the Constitution - as long as there was not another terrorist attack. Persuading the country to stop paying attention to such brazen and cynical appeals to our most primitive fears will have to at times come in small steps.
Just look at the shrieking and hyperventilating that greeted Holder’s announcement. It is not simply the usual hissy fit that Republicans have perfected as a means to hijack story lines, though that is part of it. It is also an almost palpable fear on their part that the framing they have been so successful with and have come to rely so heavily on is about to be discredited. The country was endlessly told Guantánamo held the worst of the worst. What happens if the individual universally regarded (via) as the worst there is gets brought to the site of his crime for a trial, and we are not made less safe as a result? What if instead the world generally considers it as a legitimate proceeding that even our enemies must grudgingly acknowledge? At that point what terrors would the right have to frighten us with? The stakes for them are as high as they get in politics - the very legitimacy of their worldview. No wonder they are screaming.
(Those last two points - progress in small steps and dispelling GOP shadows - may have a domestic parallel in the health care debate. I think liberals are making a mistake by treating the current moment as a once-in-a-generation opportunity that we either completely succeed or fail at. It should be treated as a cause, and we need to have the determination and persistence to keep at it. Fight like hell for the best deal right now, and once the flaws of the new system are revealed come back for more. And once the reforms start phasing in the public will realize all the dark warnings on the right are nonsense.)
The goal is not to “win” the argument but to convince the larger part of the electorate that they have been deceived. The way to do that is to assemble evidence piece by piece, and the trial of KSM is one of the biggest. As time goes on the picture will become clear, and that will make the public open to proper judicial treatment for more and more detainees. I understand the urgency of those who have languished for years and know that the American public’s evolving view on detention should not be their problem; I also understand the serious reservations of those who warn of the implications for the administration’s shuttling of suspects into different venues based on the prospect of securing a conviction. Still, I can’t help but be encouraged by the direction we seem, slowly, to be moving.
Dan
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Reader Comments (4)
"System shopping" is a great description in the larger context as well.There's a growing conviction that "democracy doesn't work in the 'real' world."
It seems more and more to me that whatever Obama may believe, his actions are driven by a desire not to have Republicans or the Villagers say mean things about him. I also think that Obama's beliefs and intentions should have been obvious by the fact that it was Lieberman who chose to mentor the newly-elected Senator Obama.
I agree that trials are a good thing, but I'm very concerned about the varying standards and systems. I appreciated Greenwald's post (as I do this one) for giving a good summary and overview. (He also had a good one on the Weekly Standard attacking the ACLU.) The Obama administration currently supports indefinite detention without charges or a trial. While I don't think they would have created the problem, and I understand they inherited a mess, this cuts to core values that can't be ignored. Yes, a prosecutor can choose charges and in some cases the venue, but in a justice system with integrity, the outcome is not predetermined – and civilian trials for some prisoners but military commissions for others smacks of a rigged game (what the Bush administration worked hard to create). Opposing trials and supporting indefinite detention (along with supporting torture and in some cases summary execution) makes for a stark confrontation between authoritarianism and the rule of law. I wrote a post on John Yoo way back when where he basically complaining about prisoners 'using justice against us,' as if such a thing was even possible. "Justice" is something everyone should value, and legally would include the possibility of life imprisonment or execution. If the government can't get a conviction against an actual terrorist, it doesn't have a case. I'm not enthused that the Obama administration is taking so much from the Bush playbook.
The thing is, right-wing critics (really almost all conservatives) of Holder are criticizing him because the trials would be too fair, not because they'd be show trials. It's similar to their criticism of Obama for the Nobel Peace Prize. I didn't think he deserved it, in large part because of indefinite detention policies. But right-wing critics didn't think Obama should get the "peace" prize because he wasn't sufficiently war-like.
We'll see how this turns out. But I'm concerned about some of Holder's statements, and the approach to many of the remaining prisoners.
Thanks for your thoughtful comments Batocchio. I basically agree with what you wrote; I just think that if the rest of the country isn't brought along - if it isn't on board with following the rule of law - then it will just be another political football that gets kicked back the other direction when the GOP wins back power. (And despite current appearances that will happen eventually.) There obviously will be tension between that much slower process and the urgency of the actual human beings who continue to rot away in limbo, and I don't want to seem dismissive of that. I think the KSM trial will have a positive effect on the country's gradual persuasion on the need for due process, though, and that's something to be cheered by.