How to punish convicted terrorists
It’s reached the point where I almost can’t write about this country’s prosecution of the “war on terror” without getting physically sick to my stomach. But I feel like I have to ask one question: why shouldn’t suspected terrorists be treated like any other criminals?
That really is the heart of the entire dispute in this country. Well, not the heart of it. I think the heart of it probably has a lot more to do with fear of brown-skinned people, but let’s set that aside. Maybe the clearest way to say what I mean is like so: the set of proposed responses to terrorism seems to divide fairly cleanly between those who believe that the military should handle it, and those who believe that the criminal-justice system is perfectly competent to handle it.
I fall quite squarely in the criminal-justice camp, in large part because we’ve made such a profound mess by trying to handle this in a military way. Suspected terrorists have been housed at Guantánamo more or less explicitly because it’s beyond the reach of the law. Likewise with the air base at Bagram, in Afghanistan. Having been placed in a legal black hole, the U.S. government has felt entitled to do unspeakable things to them that have destroyed our reputation. (It’s not clear to me that the U.S. had a stellar reputation, human-rights-wise, even before the Bush administration. But let’s set that to one side. It is, in any case, clear that the Bush administration did nearly irreparable harm to whatever reputation we had.)
So it seems to me that swinging the pendulum back to the other side, where we treat suspected terrorists as ordinary criminals, is a perfectly reasonable thing to do after eight years of inhumanity.
And still, in any case: no one has explained to me why the criminal-justice system is not competent to handle all these cases. It handled the Unabomber and the original bombers of the World Trade Center; these, and others, are now housed in a supermax prison, from which they will never escape. If we’re actually afraid that they’ll escape, then doesn’t that say that we should fix the prisons rather than cast the suspected terrorists out into legal no-man’s-land?
Let’s add a word on terminology here: calling those housed at Guantánamo “terrorists” assumes that we’ve worked through enough procedure to know, beyond a shadow of a doubt, that they’ve done what they’re accused of doing. It is extremely dangerous to allow ourselves to think that way. A criminal trial before a jury of our peers, with the evidentiary protections afforded by the Fourth and Fifth Amendments, and with “beyond a reasonable doubt” ringing in our ears, is the gold standard in assigning guilt. We harm our own self-interest, and we weaken our system of justice, if we accept that the military knows best. So in my book, they’re “suspected terrorists” until an ordinary court has done its job.
If these people are actually guilty, shouldn’t we trust our criminal-justice system to prosecute them? If we don’t trust it to prosecute them and competently label guilt or innocence, then why do we trust it to assign guilt or innocence to run-of-the-mill murderers or rapists? Why did we trust it to competently try Tim McVeigh?
The answer seems fairly clear to me: we tried Tim McVeigh in a U.S. court because we had to: he was an American citizen captured within the United States, and was therefore subject to all the protections afforded to American citizens. Those housed at Guantánamo were captured abroad, and are therefore not subject to the same protections.
Of course, this makes life easier for the government: it’s a nice coincidence that what they want to do — torture some people — fits with what they’re allowed to do.
But we’re the United States. We don’t just do what we want to do. We abide by the rule of law even when we don’t have to. We don’t hold people in indefinite detention, even if we can. We don’t torture them, even if we can. We’re confident that our court system can correctly assign guilt or innocence, and that it will put convicted murderers to death or lock them up in solitary confinement for the remainder of their nightmarish days.
We’re a great nation because we don’t act as disgustingly as we’re allowed to. We tie our own hands because it’s the right thing to do. And because acting justly is in our own self-interest.
