Here is President Bush’s justification for sending suspected terrorists to “military tribunals” rather than granting them the legal protections we normally grant people, whether Americans or foreigners: “Non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects,” the president says. “They are unlawful combatants who seek to destroy our country and our way of life.”
Is the circularity of this logic so obvious that dwelling on it would be pedantic and obnoxious? Well, that’s never stopped me before!
Everyone agrees that people who have in fact planned or committed mass murder are “more than criminal suspects.” They are criminals, and thus lose various privileges we normally accord people—such as the privilege of not living in a prison. But the question is: How do we determine whether they have in fact planned and/or committed mass murder? Bush’s answer—since they’re guilty, we can skip the standard procedure for determining whether they’re guilty—could bring real administrative efficiencies, but it involves logical problems that even I won’t bother elaborating.
Alarmingly, this piece of logic didn’t just slip out during Bush’s off-the-cuff defense of military tribunals this week; he uttered it as part of last week’s official, prepared statement in defense of them. The logic was presumably vetted by some of the finest legal minds in his administration. With minds like that, who needs gut instincts?
But the faulty judicial logic isn’t what bothers me most about these “military tribunals”—courts that could operate in secret, among other eccentricities. It’s the faulty geopolitical logic.
Since Sept. 11, many observers have credited President Bush with belatedly appreciating that the United States is part of Planet Earth. This erstwhile unilateralist, we’re told, is now a blossoming multilateralist, increasingly aware of America’s interdependence with other nations. And it’s true that events have moved Bush toward enlightenment. But this secret-tribunal idea is among the evidence that they haven’t moved him very far. To truly appreciate the interdependence of the modern world would be to accept two premises that call the secret-tribunal scheme into grave doubt.
First, and most obviously: If America wants to be treated in a certain way, it helps to treat other nations the same way. Do we want our citizens given a fair and open trial when they’re accused of crimes abroad? Manifestly. We protested Peru’s military “trial” of American Lori Berenson on terrorism charges. The Peruvian government obliged us by giving her a new trial in a civilian court, where she was convicted on a lesser charge and given a milder sentence. On what grounds would we protest the secret trial of an American citizen in the future if we’re giving foreigners secret trials?
Second: In the modern world, what people think of the United States matters. As Sept. 11 and its aftermath suggested, technological evolution is moving us into an age when groups with intense grievances will have the capacity to wreak great violence. Being a much-hated nation will be increasingly unenviable. So, it matters that our treatment of foreigners be perceived as fair, and the first step toward this goal is to let our treatment of foreigners be perceived.
Of course, there are people on the streets of Pakistan and Saudi Arabia who could never be convinced that America’s jailing an Islamic terrorist is just. Some secret-tribunal enthusiasts would doubtless point to these people, arguing that convincing America-haters of America’s goodness is a lost cause anyway—so, what have we got to lose? They’d be wrong on two counts.
First, converting America-haters to America-tolerators isn’t the only goal. Preventing the conversion of America-tolerators into America-haters is equally important. And the more plausible the stories about American injustice, the more such conversions there will be.
Second, to act as if all America-haters are impervious to reason is simplistic and borderline racist. You heard the same type of muttering after the O.J. Simpson trial, when opinion polls showed that an astonishingly high percentage of American blacks considered Simpson innocent. Indeed, the parallels between the post-Simpson muttering and the post-9/11 muttering are close enough to warrant exploring.
In the Simpson case, the people most astonished by the number of blacks who thought Simpson innocent were mainly people who hadn’t been paying attention. The handling of the case by police and prosecutors was hugely inept, a godsend to those inclined to think Simpson had been framed. (For example: The detective who took Simpson’s blood sample at the precinct house didn’t follow prescribed procedure to book it there as evidence. Inexplicably, he put the vial of blood in his car and drove it to the crime scene—exactly the place where investigators later said they’d found blood identified as Simpson’s.)
Of course, given the diverse evidence of Simpson’s guilt, you wouldn’t seize on scattered signs of a frame-up had you not been suspicious of the justice system in the first place. Still, had there been no evidence of a frame-up, fewer blacks who were suspicious going into the trial would have been suspicious coming out. If you don’t make stories of injustice plausible—by, say, holding your trials in secret—they’ll have less valence. Besides, the suspicions that some blacks carried into that trial didn’t take shape in a vacuum. The Los Angeles police (some of them, at least) were notoriously racist, and blacks across the country were familiar with the experience of being singled out for suspicion by police and private security guards.
The point of this little excursion isn’t that whenever an ethnic group exhibits a psychology of oppression, it is justified. Typically there is a variety of grievances, ranging in legitimacy from very to not at all (ranging from, say, the complaint that the United States sponsored a coup in Iran that led to decades of brutal repression to the complaint that globalization is an American plot to rule the world).
The point, rather, is that a psychology of oppression is built up slowly, by a lot of little things, and it can be broken down only slowly, by a lot of little things. Some of these things we can’t control, since some of the grievances won’t bear any real correspondence to our behavior anyway. But some of them we can control—such as whether Muslims suspected of terrorism are tried behind closed doors and sentenced to death by a two-thirds vote of Army officers whose current assignment is to fight a war against terrorism.
President Bush was right when he said that the struggle against terrorism would be very long and would proceed on many fronts. Righter than he seems to realize.