October 03, 2004
Brought to Justice?
From the first Bush-Kerry debate:
Seventy-five percent of known Al Qaida leaders have been brought to justice. The rest of them know we're after them. We've upheld the doctrine that said if you harbor a terrorist, you're equally as guilty as the terrorist. [...]
Of course we're after Saddam Hussein -- I mean bin Laden. He's isolated. Seventy-five percent of his people have been brought to justice. The killer -- the mastermind of the September 11th attacks, Khalid Sheik Mohammed, is in prison. [...] The Philippines -- we've got help -- we're helping them there to bring -- to bring Al Qaida affiliates to justice there.
Have Al Qaida leaders been brought to justice, as that term is conventionally and constitutionally understood?
I haven't keep up with the legal treatment of captured terrorists as well as I ought, but the impression I've gotten is that very few of those involved with September 11 attacks have in fact been charged with crimes, put on trial and convicted. Instead, they are held and questioned for information about past and future crimes, generally without benefit of counsel. This may well be necessary to our becoming fully informed about 9/11, but I don't think it ought to be called "brought to justice."
Al Qaida leaders have been captured, and there's no shortage of people who would see it as justice, in the sense of "getting what one deserves," to have them all boiled in oil instead of tried in accordance with American and/or international law. Nonetheless, to reduce justice to this anarchic notion of desert violates my sense of it as "the administration and procedure of law."
Honestly, I don't understand why President Bush keeps using the phrase "brought to justice" when talking about what he wants to do with the terrorists. Judging by his administration's track record, he has very little interest in bringing Al Qaida to justice, American-style. What he really wants -- and again, he might have the right idea here -- is to capture terrorists and get information out of them.
If they're kind of low level types, whatever happens to them after that doesn't appear to concern him, as we saw with Yaser Esam Hamdi. If they're high level types... well, Khalid Sheik Mohammed is in prison, he did not pass Go and collect an actual conviction on the way there, and in the 18 months since his capture, the U.S. government has evinced no plans to put him on trial.
Perhaps Bush feels that merely capturing terrorists is not really satisfying. "Capture" sounds like such a preliminary measure. We need to do something with these terrorists, and with "boil them in oil" not considered acceptable by allies such as the British, Bush has settled on the rhetorically ringing, if not technically accurate, "bring them to justice."
As for a doctrine that equates harboring a criminal with committing the crime, it may be an effective deterrent against such aid, but it hardly comports with most legal precedent.
October 3, 2004 05:42 PM
I don't understand the complaint. What we should do with these terrorists, assuming we have concrete evidence supporting our belief that they are in fact terrorists, is whatever we NEED to do in order to find out about the next planned attack. They may be entitled to due process hearings to test the evidence against them in US district court (under loose standards), but what more do you argue they should be entitled to? If we capture Osama Bin Ladin, what do you believe he should be entitled to in terms of rights? Do we have the right to imprison him for life? Do we have the right to execute him?
What we should do with these terrorists, assuming we have concrete evidence supporting our belief that they are in fact terrorists, is whatever we NEED to do in order to find out about the next planned attack.
OK, but can you really claim that this is "bringing them to justice"? That was the (intended) point of my post -- that while Bush's policies regarding captured terrorists may well be correct, he ought not term them "bringing terrorists to justice." It's the inaccuracy of the phrase of which I complain, not the policy underlying it.
I'm not biting. And I'm a Kerry supporter. I think it is a fair statement for Bush to state he is bringing these persons "to justice" by simply capturing them, and imprisoning them until we decide what to ultimately do with them.
I think it is a fair statement for Bush to state he is bringing these persons "to justice" by simply capturing them, and imprisoning them until we decide what to ultimately do with them.
So capturing and imprisoning someone for an indefinite period, until we impose some uncertain end (deportation? lifetime imprisonment? death?) on him, is your concept of justice? Oy.
American power does not automatically equal justice. Bringing people under American power, therefore, is not the same as bringing them to justice. Perhaps mine is the minority view, but I have a much more robust idea of what justice is than Bush (or UCL) does.
That sounds combative/ insulting, but I really can't think of another way to put it.
If we capture Osama Bin Ladin, what do you believe he should be entitled to in terms of rights?
At the very least, I think he is entitled to some process to determine that he is, in fact, Osama Bin Ladin. Since we already killed one other guy we thought was him and have had to release others from Gitmo and Abu Ghraib when we found out they weren't who we thought they were, it's reasonable that some process exist to at least make sure we do whatever passes for justice to the right person.
Beyond that, I think there should be some sort of tribunal (ala Nurenburg?). Without that, we end up looking like the post-Shah Iranian "justice" system. The hard part about being better than your enemies is that you have to keep being better than your enemies.
We've upheld the doctrine that said if you harbor a terrorist, you're equally as guilty as the terrorist.
This is the part of Bush's "doctrine" that I have the most trouble with. Not because I disagree with the idea of punishing state sponsors of terrorism, but because it's phrased as an absolute. I don't think the Taliban or Libya providing a safe haven and a training base for terrorists is equivalent to a country letting a person who has been called a terrorist receive medical treatment or failing to apprehend a terrorist who is in your country illegally. Strictly interpreted, we're guilty of harboring a terrorist right now as we gave asylum to a Chechen that Russia considers to be a terrorist. I don't think that justifies Russia nuking us. Applied to individuals through the Patriot Act, it gets even worse. You can be guilty of terrorism for as little as donating money to a group that is later deemed to be a terrorist group (providing material support). I'm sure that part will be ruled unconstitutional eventually, but I'd hate to be the one to spend months or years in prison waiting for my appeal to go though.
I'm still not understanding PG's complaint. From what he's writing, it seems like he has no problem, say, imprisoning Osama Bin Ladin, and that his sole objection is to associating the word "justice" with imprisoning him. What does Bush have to do in order to claim that he has achieved justice? If Bin Ladin is finally killed in a fire fight and we confirm his identity through DNA and all of America learns that he is dead, should Bush have to refrain from saying that justice was achieved?
Justice is a highly subjectve and, in this specific context, open-ended concept. Justice for me when it comes to the September 11 attacks, as an American, means killing and capturing everyone responsible. I don't care how. Catch them and put them in prison. And if they'd rather fight than come quietly, kill them. Either one serves my sense of justice. They are not defendants. They're foreign terrorists. Even the Kerry camp accepts that.
My problem is with Bush's reductive concept of justice. He collapses it into "getting the terrorists." If we bomb a camp and find bin Laden's teeth in the rubble, no, I don't think that qualifies as "bringing bin Laden to justice." You might say that "justice has been done" in some holistic sense, but then you could say the same if bin Laden drops dead of a heart attack -- you are saying that bin Laden deserves death for his action, that if he dies, that is justice. If every member of Al Qaida get Ebola and dies, I don't think we've brought them to justice, no matter how deserved an end this is.
Bush wants to claim justice, with its connotations of fairness, due process and civil society, for how we deal with terrorists. I don't think it's accurate to claim that locking people up for indefinite periods is bringing them to justice. I question Bush's need to use the word, instead of saying, "Seventy five percent of known Al Qaida leaders have been killed or captured."
"Bush wants to claim justice, with its connotations of fairness, due process and civil society, for how we deal with terrorists."
I guess our disagreement boils down to that one sentence. You say Bush's reference to "justice" implies connotations of fairness and due process. I say his reference to "justice"--when he's talking about hunting down Al Quaeda terrorists--is in a much broader sense and implies no such connotations. Since he hasn't really expounded on the topic, reasonable people can certainly disagree on the question.
Ultimately, all of us will have our own individual sense of what constitutes "justice" when it comes to those responsible for September 11. Some people won't be satisfied that justice is achieved unless Bin Ladin is captured, put on trial, and punished, and that's ok. Others, like me, would be satisfied that justice was achieved even if Bin Ladin died in a cave due to kidney failure because he was unable to treat his condition as a result of having to hide from the US effort to find him. The differences seem more emotional and subjective to me, than objective. And I don't believe one view is superior or inferior to the other.
I think the differences between what constitutes "brought to justice" for different people are indeed subjective. However, your preference for saying "justice was achieved" seems instructive to me. A CLS student, in a post that I don't otherwise endorse, shares my concern:
'bring them to justice.' I guess in the eyes of their god, because not a one has been tried, nor brought to justice in the traditional sense of the word. Maybe GWB is secretly loving them?
I worry about the use of words that, at least for me and maybe other naive law students, is loaded with far more meaning than merely "due reward."
The term "justice" is a euphemism as Bush uses it, and it can mean anything from indefinitely detaining suspected foreign fighters not charged with crimes to killing the enemy. For example, American jet fighters delivered 1000lbs. of bunker-busting "justice" to Abu Musab al Zarqawi. He died 45 minutes later due to internal injuries caused by the blast waves of "justice."