PrintJune 26, 2007
Casting Terrorists as Defenders of the Constitution
The American legal system is the latest of our institutions to collapse in the face of terrorism. Cherished pillars of our society and polity have dropped, one after the other. In most cases, it was only to be expected. The media lasted a matter of days, the academy not even that long. The Democrats slid early, through a combination of cynicism, opportunism, and ideology. The Republicans are tottering, never having actually grasped what it meant to act as a "war party". The CIA, the State Department, and much of the federal bureaucracy have, as always, proven themselves masterly at looking out for their own interests.
But there was always some hope for the law. The legal system, with its deep sense of tradition, its intellectual resources, its clear concept of mission, and its simple, stolid inertia (sometimes as much as virtue as a failing), its refusal to be hurried concerning matters of import, had plenty of anchors to keep it from slipping the same way that more ephemeral sectors had.
That hope is now gone. With a series of decisions made over the past few weeks, the American legal establishment - both civil and military -- has met and surpassed the lowest expectations of its critics.
At Guantanamo on June 4, a pair of military judges threw out the cases against two active members of Al-Qaeda. These were not trivial figures. Salim Ahmed Hamdan served as no less than Osama bin Laden's driver and bodyguard, apart from his role in planning and carrying out attacks against civilians. The second defendant, Omar Khadr, is of an altogether different order. The junior member of Canada's "Al-Qaeda family", a clan in which every adult male member was a made mujahadin, Khadr was picked up while fighting against U.S. forces in Afghanistan. The soldier he killed there was a medic in the process of treating the injured. You will look and hard to find that fact mentioned in any current coverage, though they have no trouble making the space to point out that Khadr was fifteen at the time.
You'd think that the flaws in the government's case would have to be pretty egregious for such a pair of high-profile defendants to be so abruptly freed. But in truth, they're closer to textbook examples of misplaced-comma nitpicking. The case against Khadr is void, claims Army Col. Peter Brownback, because the military review board labeled him only an "enemy combatant", not an "unlawful enemy combatant". The same logic (if that's the word I'm groping for) was echoed by Navy Capt. Keith Allred in the decision on Hamdan. Because "unlawful" was left out, he is "not subject to this commission". It has to say "unlawful". They're not kidding. Presumably, it also has to be highlighted, underlined, and italicized as well. Every last usage. The court clerks will check.
While the distinction between "lawful" and "unlawful" combatants is important in protecting our soldiers, the remedy prescribed by the court is ridiculous. The sole relief for this error, according to Brownback and Allred, is to cut Khadr and Hamdan loose. And that means doing the same with every last one of the 380 goons now awaiting trial - as ripe a collection of child-killers, head-cutters, bomb-makers, and mass murderers ever taken into custody.
Of course, nothing of the sort is going to happen. The actual aim appears to be to kick the entire caseload into the civilian courts, which will represent no improvement.
On May 30, in a decision of which the Guantanamo judges were no doubt well aware, a U.S. District court ordered the release of a Palestinian named Majed Talat Hajbeh. In Jordan, Hajbeh had been convicted of terrorism for, among other things, bombing an American school. (Which didn't stop him from running to the U.S. to hide out.) Picked up on an immigration charge, Hajbeh was held for four years while the U.S. searched for somebody willing to take him off our hands.
For some obscure reason, no state, including the Israelis, was interested in providing a home for a hardened Palestinian terrorist. (I assume he could have been sent back to Jordan but for rules forbidding this.) And there things stood until the last days of May, when Judge Jerome B. Friedman revealed that international terrorists who cannot be dumped elsewhere must be turned loose without further ado.
For some obscure reason, no state, including the Israelis, was interested in providing a home for a hardened Palestinian terrorist. (I assume he could have been sent back to Jordan but for rules forbidding this.) And there things stood until the last days of May, when Judge Jerome B. Friedman revealed that international terrorists who cannot be dumped elsewhere must be turned loose without further ado.
And on June 11, the umpire called, "strike three!" in the form of Al-Marri v. Wright. Ali Saleh Kahlah al-Marri is an easy match for Khadr and Hajbeh, a Qatari who trained at an Al-Qaeda camp, actually met 9/11 planner Khalid Sheikh Mohammed, and was sent to the U.S. to establish a sleeper cell to be activated for later terrorist strikes. The Fourth U.S. Circuit Court of Appeals argued with none of that. Nor did they dispute the fact that Al-Marri is an enemy combatant, unlawful or otherwise. What they found was that, despite those unquestioned facts, the United States "lacks the authority" to hold Al-Marri, and, by extension, any other active terrorist.
So in under two weeks time, the judiciary of the United States has established that known international terrorists, bent on causing as much destruction within this country's borders as humanly possible, cannot be held at Guantanamo, cannot be held in U.S. prisons, and cannot be returned to the only countries that will accept them. Needless to say, the media, the academy, and the Democratic Party - collapsed institutions all - view this as a triumph.
All this was predicted in detail as early as 2002, when the first large-scale arrests of terrorists occurred. If the response to terrorism was allowed to rest in the hands of civilian courts, it would become a matter of legal minutiae, all sense of its actual import would be lost, and it would deteriorate into precisely the kind of circus we see here. The courts have followed the script exactly, as if rehearsed and directed. The only variation lies in the fact that the military judges have proven just as frivolous - but of course they would be; they attend the same schools after all.
Any hope that the law would meet the challenge of terror and adapt to changing conditions, as occurred at Nuremberg, is now ended. (The media even went so far as to dig up an ancient Nuremberg prosecutor to condemn the proceedings at Guantanamo. No, not the dismissals. According to Henry King, Jr., no such thing could ever happen, because the "rules" at Gitmo are stacked completely against it. A sad piece, really - King seems to have no idea what has actually been happening at Guantanamo and was simply parroting whatever the reporter told him.)
It's a very difficult thing for institutions to overcome their own history. In the latter half of the 20th century all the institutions of which we're speaking encountered challenges to their basic roles, missions, and understanding of themselves. All of them failed to one extent or another. The academy and media have been lost in self-regard and irresponsibility for many years. Following the implosion of classical liberalism in the 1960s, the Democrats have had no aim but to achieve and wield power. And as for the law...
Originally law represented the interests of society as a whole. The goal of legal proceedings was to repair breaches in the social fabric brought about by torts or criminal activity. Law was a balanced entity which (at least in the English system, and in the ideal sense) represented the interests of no party more than any other.
This classical paradigm underwent deep and massive changes during America's cultural revolution beginning in mid-century. Thanks to a serious misinterpretation of psychology by criminologists and other academics, the law began to shift its focus from the general to the particular, from society at large to the criminal. Psychologists such as Karl Menninger and criminologists beginning with the Chicago School of Social Science promoted a belief that rehabilitation of the offender must become the central pillar of the justice system, with all other factors, including punishment and restitution set aside. This way of thinking soon spread into the law schools and legal journals, becoming the consensus view of the legal profession (and beyond them the public at large, through such legacy media outlets as The New York Times, The New Yorker, and the Big Three broadcast networks.)
By the mid-60s this viewpoint had become formalized through the "procedural revolution", in which a number of landmark Supreme Court cases - Mapp v. Ohio, Miranda v. Arizona, and Escobedo v. Illinois - shifted the offender to the very center of the criminal justice system. All other claims, including those of society and the crime victims, took second place from that point on.
The argument was sharpened as the 60s progressed, with claims that the criminal was the "first line of defense of the Bill of Rights", a kind of revolutionary hero serving as a Marxian vanguard for the rest of the proletariat. Criminals "stood alone against the full power of the state", and deserved all the assistance they could get. What was a regular, law-abiding citizen, after all, but a criminal who hadn't been arrested yet?
Of course, it ended in disaster. The sanctification of the offender was a key element in the great crime explosion that wracked the country from the mid-60s until the late 90s. Hundreds of thousands of murders, robberies, and rapes (the exact number is unknown and never will be known) occurred as a direct result of the "procedural revolution". Criminals, it seemed, were not interested in any role as paladins of the Constitution as much as they were in getting away with the crime, and wound up using the procedural reforms as get-out-of-jail-free-cards. Over the following three decades, the new rights were slowly trimmed back by the courts, but never completely. In the past few years, the entire thesis has undergone a revival in legal circles, with the classic-comics psychology replaced by new findings in neuroscience.
The same attitude now serves as a template for the current legal view of domestic terrorists.
The entire campaign against terrorism has been depicted as a vast conspiracy against the public. (Not so incidentally, this has been the most successful campaign of its type ever carried out - not a single successful strike has occurred in America since 9/11. Compare that to Northern Ireland or the campaign against Basque terrorists.) All the failed institutions -- the media, academics, Democratic politicians - are in full agreement on the point that the public is in jeopardy from the campaign against terror, nevermind the diminishing memory of the meaning of a terror attack in concrete and human terms. Federal telephone tapping, in their view, is not designed to track down potential terrorist plots, but to discover who's speaking out against Big Brother. Surveillance of overseas banking is not intended to trace funds that could be used to finance a terrorist strike, but to gather information about the citizenry. Library surveillance isn't meant to track down individuals searching for targeting information or bomb recipes but to compile lists of people reading Cindy Sheehan's books, and so on.
So if the War on Terror is a fraud, no more than a grotesque conspiracy designed to implement some kind of garrison state, what does that make the "terrorists"? What else but victims? Victims suffering horribly amid the abuses of Guantanamo and the rendition prisons. Victims standing alone against the full power of the state, victims deserving all the assistance they can get....
And in fact, the rhetoric we're hearing from the bench today closely echoes what was said about criminals during the 60s. Judge Diana Gribbon Motz, in her decision on the Al-Marri case:
"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants, would have disastrous consequences for the Constitution - and the country."
There we have it - the terrorist as protector of the Constitution. The first line of defense of the Bill of Rights.
These American judges are trapped in their own mentalities. They are prisoners of the legal history of the past fifty years. They can't think of terrorists in any other way than as Mirandas and Escobedos of slightly different order. They can't conceive of the current terrorism prosecutions as anything other than echoes of those cases. They can't dispose of them in any way other than the way their predecessors dealt with Miranda and Escobedo and all the others.
Regrettably, it will end badly, as it did in the last century. Thousands of deaths, tens of thousands of crippled lives, all in the name of an ideology. The price of terrorism remains hidden. We will be very lucky if in the end it is lower than what we paid to let our criminals run wild.
We're beginning to run out of institutions. We have the executive, the military, certain elements of the intelligence community, and, it's true, the higher levels of the judiciary. But that's all. We will learn how well we can do with only that, with virtually every other element of our society either indifferent or actively working to undercut our security. Eventually, of course, the last straw will drop, our defenses will fade like shadows, and we will be left alone in the presence of our enemies.
Those enemies are well aware of all this. How couldn't they be? And they will take advantage of it. Wouldn't you?
J.R. Dunn is consulting editor of American Thinker.
