November 13, 2009

Treat A Criminal Like A Criminal

I
What is Terrorism?

In 2003, I read a book by Caleb Carr called The Lessons of Terror.  In it, Carr argued that terrorism is a military threat and should be handled by the military in the way that the military handles things.  Specifically, he argued that terrorism should not and could not be effectively addressed using the criminal justice system, and attempting to shoehorn a military problem into a criminal-justice frame would not properly address the problem and could make things worse than they were before.

Carr has, I think, been proven partly right.  The strange hybrid of military force and criminal justice has harmed our reputation as international good guys, and caused us to compromise our ideals about due process.  What it has not done, however, is keep us any safer.  I explain why that is below.

What I think Carr got wrong -- what I was always uncomfortable with -- was addressing terrorism as a military threat.  Terrorism uses force to effect political change, that is certainly true.  In that sense, the terrorist's ultimate objective is the same as a soldier's.  But where the soldier seeks to eliminate the ability of his enemy to resist imposition of his nation's power, the terrorist seeks to alter his enemy's desires

Frequently, this is done by inciting or provoking action which would be considered overtly immoral if suggested by a calm populace, and that technique can only be used against a people who are fundamentally moral to begin with; those who would feel no moral compunction about doing to a terrorist what the terrorist would do to him are sociopaths already.  But when people with rational minds and moral codes of reasonable strength give in to panic and respond based on emotion alone, they risk playing into the hands of the terrorist. 

Regardless of the terrorist's succees or failure, however, terrorism and politics are inextricably intertwined.  The terrorist's goal is political change of some kind.

II
What is the Political Objective of Islamic Terrorism?


The typical terrorist seeks to effect some kind of political change. Often this is very successful. Al-Qaeda blew up train stations in Spain in 2004, and quite likely influenced the outcome of the imminent elections in Spain from what was going to be a narrow victory for the pro-war party into a narrow victory for the anti-war party. The implied message to the people of Spain was, "As long as you stand with the Americans, you are not safe, because we can do this to you again," and the people of Spain responded by electing an anti-war political coalition into power in their Parliament. Several months later, Spanish soldiers were all out of Iraq. That's effecting political change through violence and terror.

Sometimes, it is not so successful. IRA terrorists seemed to be blowing up a pub in England once a week in the 1970's. Northern Ireland, however, remains part of the United Kingdom. The UK not only did not give the IRA its objective of withdrawal from Ulster, it redoubled its military presence there. Hamas, Hezbollah, and a variety of other Palestinian terrorist organizations have attempted to scare Israel out of the West Bank, Gaza Strip, and Golan Heights for many years now and while Israel's responses have not always been particularly noble, it never backed down.

Now consider 9/11. What was the political objective of 9/11? It was obviously a totally unprovoked attack on the United States. It was visually horrific and cost thousands of innocent lives. The shock, horror, and panic it produced were part of the attackers' objectives. But I think we've been wrong to say "They hate us because of our freedoms," or "They hate us for our way of life," or "They hate us because we're Christians." Those are not political objectives. What they wanted to do was something that we could not ignore, something that would compel us to make a counter-attack. They wanted us to invade Afghanistan.

Why? This one is easy; it was clear even in the immediate wake of the attacks. Osama bin Laden loudly proclaimed that the United States was at war with Islam and that he had struck a mighty blow in the name of the Prophet. In response, there was widespread fear about the creation of a new Caliphate, one hostile to the United States.

That got it partly right. The ultimate goal was the creation of a new Caliphate. The United States, however, was simply a catspaw that could be manipulated as an antipode to the organization of that new political entity. Bin Laden wanted to be Caliph -- that's why 9/11 happened.

You notice, though that bin Laden is not Caliph today. His political gambit failed. The Muslims of the world did not rally around him, did not thrill to his leadership, did not reject America as a foe and an enemy. Many Muslim nations deepened their alliances with the United States. Most Muslims around the world were as horrified as Christians, Jews, seculars, and pretty much everyone else at what had happened, and they were embarassed that they would be lumped in with those... those... well, "criminals" is about the right word for al-Qaeda and their excerable minions.

What's more, we did something that al-Qaeda did not anticipate we would do. We invaded Iraq.

I have little faith or support for the idea that the invasion of Iraq had much to do with al-Qaeda. The "link" between Saddam Hussein and al-Qaeda was always tenuous and with the clarity and benefit of hindsight, it is fairly clear that there was no coherent or meaningful link at all.

Nor would I sign on to the idea that the United States invaded Iraq for the purpose of frustrating bin Laden's bid to form a Caliphate. Frankly, I don't think the leadership of the country at that time was that subtle or that capable of projecting problems out. I think they saw that the country was in a state of heightened agitation and distress, that there was generalized fear of Arabs and Muslims, and found it a convenient time to attempt a gambit of our own, a bid to convert a wealthy and industrialized nation from one hostile to us into one friendly to us, and to give us a staging area from which we could directly challenge Iran's emerging bid to become a regional hegemon.

And this is the reason why we have not suffered another serious attack since 9/11.  It's not that the enemy stopped hating us, and it's not that they stopped having the ability to attack us.  They haven't run out of box cutters, they haven't run out of religious fanatics they can brainwash into suicide bombers, and our security measures haven't grown so sophisticated and effective that we're now immune from another clever attack.  The reason we haven't been attacked again is that there is at the moment no political gain for our enemies to realize by attacking us.

So, a happy although unplanned outcome of the invasion of Iraq was to radically shift the political focus of the Muslim world. The idea that Muslims needed to unite behind a Caliph dissolved into the deep, bloody, and frustratingly time-consuming ambiguities of the conflict in Iraq. There was even a time that much of the world considered the ongoing conflict in Afghanistan the "forgotten war."

III
Was The Attack At Fort Hood Terrorism or Crime?

Now, Afghanistan is back in the news more prominently these days, and it seems that Soon-to-be-Former-Major Hasan went on his rampage in order to avoid deployment there. So far as the early evidence circulating in the media would suggest, Hasan was not trying to get the United States to pull out of military operations in either Afghanistan or Iraq. He wasn't trying to change our political leadership or the policies it is pursuing. He just didn't want to go to Asia and fight his fellow Muslims, or more to the point, give aid and comfort to the soliders who were doing the actual fighting. His crime was committed in an effort to achieve a personal objective, not a political one.


This is why I don't think it's right to call Soon-to-be-Former-Major Hasan's attack at Fort Hood last Thursday an act of "terrorism."  The attack certainly evokes terror, moral revulsion, and demands for some kind of response.  Even here on this obscure little blog pressure to respond to the incident is strong and vocal.  There was criticism of President Obama for his immediate reaction, although I think he gave a fantastic speech at Fort Hood for the memorial service, the sort of speech that takes time to do right.

After all, what, really, is there to say about the attack itself?  No one will praise it.  No one will defend the moral correctness of the shooter.  (Well, maybe that's not exactly true.)  To be sure, it's interesting and disturbing that Major Hasan, who seems certain to be convicted of this crime, had somehow polarized his political and religious world view to call himself a "soldier of Allah" (There seems to be no evidence behind the rumor that he had sought some kind of contact with al-Qaeda.  If he had attempted to join up with al-Qaeda, that would make him a traitor, and that too would have been a criminal and not a military matter.)  Everyone will and should praise the heroics of the police officers who stopped the attack.

What's of interest now is how we respond to it.

So in that sense, it's better to view the Fort Hood attack through the lens of criminal justice rather than the lens of terrorism.  Think "Columbine, 1999" not "Munich, 1972."

IV
What Is The Appropriate Response To The Shooting?

Which is why things like this -- about which I briefly wrote last night -- are particularly disturbing.  Bill Kristol epitomizes the response which causes me revulsion, qualitatively different than that of the attacks, but equally deep:



Say what, Mr. Kristol?
I was very struck also by Janet Napolitano’s comment, I hadn’t read it before to see her say that, that the number one priority is to bring him to justice is such a knee-jerk comment and such a stupid comment. He’s going to be brought to justice. He is not going to be innocent of murder. There are a lot of eyewitnesses to that. They should just go ahead and convict him and put him to death.
You know, back in the 1970's and early 1980's, there was something of a cultural backlash to the Supreme Court's taking on high-profile criminal procedure cases, and it was most prominent in the ranks of the conservative "movement" of that time.  You can see it perhaps most prominently in the Dirty Harry movies, where a tough cop, hamstrung by nonsensical liberal judges, "goes vigilante" and just takes out the bad guys, making the world a better place, and we the audience cheer him on as he breaks the rules in order to achieve the greater good -- the "greater good" being defined as ridding the world of scumbags who only debatably even count as human beings.  Kristol's comments are in perfect harmony with a cultural mindset that equates due process with inviting danger.

We get into a problem area when fantasy becomes the principal mental model actually used to guide the formation of policy.  When we start picking Supreme Court Justices who genuinely think that it is a crippling imposition on good police procedure for an officer to have to tell an arrestee that he has actually been arrested, we've crossed that line.  When we ask our Presidential candidates to make decisions about whether or not to authorize torture on the basis of "ticking time bomb" scenarios depicted on the Fox TV series 24 which have never had any analogue in real life, once again the intent is to form policies in reaction to fantasy and not reality.  We may soon be asking our politicians to offer ways to verify that none of our law enforcement officers are really infiltrators from a sleeper cell of Lizard People From Outer Space Who Want To Eat Us.

(Don't even get me started on other kinds of political policies built on fantasies, like the idea that taking the phrase "In God We Trust" off the money will make children grow up to be homosexuals, or that teaching evolution in schools instead of the Lord's Prayer was the reason we lost the Vietnam War or we'll lose our religious liberties if gay people get the same kinds of property rights as staight people do, or whatever other bullshit policies are based on religious fantasies.  Those are every bit as pernicious, but for now, I'm content to confine myself to fantasies about terrorists found in movies, television, and video games.)

Soon-to-be-Former-Major Hasan apparently commited a terrible, awful crime.  But it was a crime.  It was not an act of war.  It was not a political statement.  It was not terrorism.  He is an accused criminal and like every other accused criminal within our government's power, he is entitled to due process.  I refer you, Bill Kristol and fans of his, to The Memo which I recirculated recently.  While there does not seem to be much doubt about Hasan's actions, application of the criminal procedures that are the very foundation of our national identity are critical to reaching justice.  Which is why he is, at this moment, only an "accused" killer despite the lack of any real doubts that he pulled the trigger

V.
How We Treat Criminals

We don't get to re-brand a criminal act as "terrorism" simply because his deeds are horrific.  We don't get to put the Constitution on hold for a particular case just because someone calls it "terrorism" instead of what it really is.  We don't get to set our own morals aside even though someone else has done something very immoral.  Has it not occured to any of you Bill Kristol fans that Soon-to-be-Former-Major Hasan may very well be insane?  If he is, then we will not and ought not to treat him the same way we would a sane person.  That sort of examination is part of our justice system and it is not taken lightly by the courts.

The title of this post is "Treat A Criminal Like A Criminal."  That means arrest him, investigate the facts, proceed based on the facts, provide the same fair process and meaningful access to the justice system everyone gets including having a competent lawyer, put on a trial, present evidence and test it by cross-examination, prove the case beyond a reasonable doubt, sentence according to the same factors that apply to everyone.  That's how we treat criminals in this nation -- with dignity, due process, and according to moral standards worthy of a nation that is founded upon the rule of law.

Accused criminals get due process in the United States.  All of them.  This is not up for debate.

4 comments:

zzi said...

TACLAC

http://tinyurl.com/taclac

David Schraub said...

A Symbol of American Greatness

zzi said...

Abraham Lincoln, alleged collaborators, with John Wilkes Booth, Mary Surratt were tried before a military tribunal and were hanged in the Old Arsenal Penitentiary on July 7, 1865.

Transplanted Lawyer said...

Booth never got a trial. He was shot during his flight from justice, about two weeks after he shot President Lincoln.

Mary Surratt got a trial -- yes, before a military tribunal, but the shooting between North and South hadn't yet come to a stop despite Lee's surrender at Appomattox.

Nor have I ever argued that a military tribunal would necessarily be an inappropriate way to try a real terrorist, someone like Khalid Sheik Mohammed, given that the evidence in such a case necessarily involves very sensitive and classified information -- although my preference would be a regular Article III Court if that were at all possible. No right is absolute, and that includes the right to a public trial in an Article III court.

Mary Surratt received due process. She was represented by a very competent lawyer, a man who had previously served as the Attorney General of the United States. Her lawyer cross-examined the witnesses against her and he demanded that the government prove its case beyond a reasonable doubt. There is no reason to think that the judges on the tribunal were biased against her; in fact, they deliberated on her case for two days before convicting. Surratt was sentenced according to guidelines of universal application, and after an expedited petition for clemency was presented to, reviewed, and rejected by President Johnson.

I'm not entirely sure that a military tribunal was necessary for Surratt, but I do not have a categorical objection to military tribunals in appropriate cases, assuming that the tribunal provides due process to the defendant.

Major Hasan's case, however, would not seem to require that a jury review any classified information. There is no "compelling governmental interest" that would indicate the need for an extraordinary military tribunal; there is no principled reason to deviate from the Constitution in his case.