Saturday, November 14, 2009

I Give It A 7: Catchy, But You Can't Dance To It

There was an interesting take on Attorney General Eric Holder's announcement that those charged with the 9/11 conspiracy currently held at Guantanamo Bay would be tried in a civilian court in New York City by Geoffrey Robertson in the "Comment Is Free" section of the U.K's Guardian. While Mr. Robertson finds much to cheer about in the administration's decision, he also expresses his disappointment in one key part of the decision.

The US attorney general, Eric Holder, deserves two cheers for his brave decision to bring the alleged 9/11 conspirators to an open trial in New York rather than to put them through a discredited military commission process. But his demand for the death penalty will be counterproductive: the obscene ritual of lethal injection will bestow on convicted defendants the martyrs crown they so desperately crave.

This is a trial that must be seen to be fair – not only by the American media (which to judge from the questions at Holder's press conference has already made up its mind that the defendants are guilty) but throughout the world. Much will depend on the choice of judge, who must be conspicuously independent and of sufficient steel to reject evidence obtained by torture – there is no doubt that Khalid Sheikh Mohammed has been waterboarded. ...

The death penalty decision will ultimately be for the jury, and it can only be hoped that they will refuse to contemplate the spectacle of convicted defendants, spot-lit and stretched on a hospital trolley, in some auditorium which must by law be large enough to accommodate relatives of their victims. Does Holder plan to requisition a baseball stadium?

It would be a martyrdom beyond the wildest dreams of the most fanatical Islamic terrorist. There is one reassuring precedent – the jury trial in Virginia of Zacarias Moussaoui, who was alleged to be the "20th hijacker". The jury rejected the prosecution's overblown demand for his death, although the judge had unfairly allowed them to hear tapes of the last moments of Flight UA93 in order to inflame their prejudices.
[Emphasis added]

Snark about stadia aside, Mr. Robertson does raise a valid pragmatic point. At this point, the death penalty is not a punishment in the eyes of these Islamic fundamentalists. It is a reward. Whether guilty or not, they will be revered as martyrs. But Mr. Robertson also looks to the barbarism of the death penalty to which this country clings so desperately. If Mr. Holder is going to try the defendants in this country, he really didn't have much choice in the matter of the punishment being sought.

There was, however, another option (which Mr. Robertson pointed out), one which might anger the right wing, but which would signal the intent of this administration to return the US to the world community, and herein lies the most interesting part of the essay:

There is, of course, a better solution. The 9/11 atrocity was, in international law, a crime against humanity and there is no doubt that the UN could have provided three international judges and the kind of trials currently being visited upon Charles Taylor and Radovan Karadzic. That would end not with one word from the foreman of the jury ("Guilty"), which will hardly convince doubters, but with a closely and carefully reasoned judgment setting out the case for guilt beyond reasonable doubt. But international courts cannot impose the death penalty and American attachment to this punishment is still unassailable.

I have long argued that the attacks on 9/11 were criminal acts and should have been handled as such, just as the first attack on the World Trade Center was, rather than as a matter of high-level national security and all the secrecy and suspension of basic civil rights that entails. I am now willing to admit that there might be an even better way of handling those crimes, the way Geoffrey Robertson suggests.

Unfortunately, this country, which still willfully insists on remaining in the grips of the simplistic views on revenge and retribution of spoiled children, might have squealed like those same children refused an extra serving of dessert. That's where leadership, real leadership comes in. President Obama could have taken the extra step and referred the matter to the UN, preparing the country with a speech that spelled out with great specificity on how those attacks were clearly a crime against humanity for which the entire world needed to bear witness and to bring judgment. That just might have defused the yammering of the far right and would have nudged the rest of the country towards some semblance of adulthood, especially as it pertains to the death penalty. If we expect to be seen as civilized, then we must take on the trappings of civilization, including the one which sees the death penalty as an excuse for perpetrating the violence we suffered.

That, of course, didn't happen. Still, President Obama did take a step towards adulthood, albeit a baby step, by moving this high profile case to a civilian court which will hopefully accord these defendants all the rights that other defendants charged with a crime in this country have: the right to knowing precisely what the charges against them are, a vigorous defense, the right to full disclosure of all evidence against them and all evidence which might exonerate them, and the right to a jury. And for that I am grateful.

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