November 20, 2009

Hey, I Know! Let's Put On a Show Trial!

I've followed all the debatifying about the decision to prosecute five (ALLEGED!) 9/11 co-conspirators in federal court with weary, muffled resignation. Yes, I know "debatifying" isn't, like, a real word. Since almost everyone else is making shit up, I don't see any reason why I shouldn't. Thank God we have a new controversy, eh wot? All those earlier ones were getting mighty tired. Remember Roman Polanski? When I wrote about that (with great reluctance), I said:
This exercise in denial and avoidance across every level of our culture, with regard to every issue, and seen nowhere more clearly than in our political debates and in the heated "controversies" of the moment, means only that we are forbidden from ever thinking or saying anything of genuine importance. As a result, our debates, including all the seemingly passionate arguments about Polanski and what, dear God, is to be done? -- all of which will be forgotten when the next controversy thankfully arrives, and not a moment too soon -- are devoid of meaning.
So here we are, still another time at the grand ro-day-o. It is our great good fortune to have the latest hot topic for our continued mindless diversion. Once again, as always, we have to take a side! "Trying these bastards as if they were human beings is an insult to our great nation! Anyone who attacked us the way they did is a monster! So we should treat them like monsters! Pronounce the death sentence and kill the SOBs!" Versus: "Trying them in federal court shows just what a great nation we are! Yes, they're monsters, but we are so strong, so virtuous, and so, so, so good that we accord even monsters justice in the same way we do everyone else! Truly we are the best that ever was or ever will be!"

You see the critical point of common agreement: the United States is the bestest ever, in this and every other universe. God, we love us. Verily, 'tis a romance for the ages.

I could spend all day dissecting the endless contradictions and utterly nonsensical statements that the Obamoids have offered to "explain" their decision. I won't: there aren't that many anti-nausea pills in the world. Only one contradiction need be noted, and it's not the little oopsie that popped out of the mouth of Obama himself. You know the one I mean: "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him." That's not putting the cart before the horse. That's dispensing with the cart altogether, grabbing the "defendant" before the trial has begun, marching him directly to the scaffold, slamming his head on the block, lowering the guillotine yourself, and gleefully picking up the severed head and jauntily tossing it in the air before the screaming crowd as blood gushes from the neck, splattering all those who proclaim they are the only true defenders of "civilization." And the man who said that is the president! And he taught constitutional law! You're ruled by idiots, and notably vicious ones. You knew that.

Of course, Obama reversed himself immediately: "What I said was people will not be offended if that's the outcome. I'm not pre-judging it." Well, heck. It's unreasonable to expect people to understand the meaning of the words they speak as they speak them, even if those words concern an issue of immense importance that has been subject to (ALLEGEDLY!) serious scrutiny over a considerable period of time. For many people, life is nothing but a dress rehearsal. I myself think Obama regards his entire first term as a dry run. Can't you hear the 2012 campaign pitch now? "Hey, I was only practicing! Do you always get things right the first time? Of course you don't! I'm human just like you! Reelect me, and give us all another chance!"

Do not for a second think that wouldn't work. Weren't you around last time?

So what were we talking about...oh, yeah. KSM, civilian trials, anti-nausea pills. Obama and his administration may not be "pre-judging" this case, but that pathetic attempt at a save is entirely beside the point. For the truth is far worse. The outcome of these trials is completely irrelevant. They've already told us that:
Senators of both parties also pressed Mr. Holder to say what would happen if Mr. Mohammed or another detainee considered to be a dangerous terrorist was acquitted on a technicality or given a short sentence. Mr. Holder has said he will direct prosecutors to seek a death sentence in the Sept. 11 case.

Other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a “combatant” under the laws of war. But Mr. Holder largely sidestepped such questions, instead simply asserting that he was confident that Mr. Mohammed would be convicted.

“Failure is not an option,” Mr. Holder said.
Ponder that fact, the only one that matters: "even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a 'combatant' under the laws of war." So he's acquitted -- declared not guilty -- and he's locked up forever.

Not guilty. And still locked up forever.

We can only hope that the United States is "unique."

And: "Failure is not an option." That is deep. Isn't that what the Bush administration said about Iraq? Isn't that what everyone says about Afghanistan? Isn't that what our solons told us about why we had to bail out the Wall Street criminals? Declaring that "failure is not an option" is the way they seek to compel you to obey, to force you to do whatever the hell they're demanding today. That's all. It is, you might say, a vicious, goddamned lie, one of the worst lies that those who would control our lives ever tell.

Of course this will be a show trial. I've written about that subject at length, in "Concerning the State, the Law, and Show Trials." That essay began:
From a broad, theoretical perspective, any trial in any State can be regarded as a show trial. In this discussion, I use "show trial" to refer to a trial in which the guilt or innocence of the defendant may be a concern to those dispensing justice (or what is designated as justice in that State), but that determination is not the primary concern. The primary objective is not answering the question of guilt or innocence in a strictly legal sense (applying the relevant law to the specific facts of the case), but political in nature. The major value of a show trial to the State is its usefulness as propaganda; more specifically, the major value is the utility of the proceeding to the enhancement of the perception of the State as legitimate and/or to the demonizing of the State's chosen enemies.
The article has much more on these issues. Apply my observations to this case as you deem appropriate. Those opening comments themselves strike me as not irrelevant.

One other aspect of this sordid business merits discussion. Events of recent years have often caused me to note one especially bathetic element of the mythologies with which most Americans, including our political leaders, suffocate themselves. We insist on our fairy tales, on our immovable conviction that no matter what destructive acts we commit, regardless of how monstrous our policies may be, there will always be a happy ending. Thus, as just one example, the United States government and its military murder more than one million innocent people -- but we still convince ourselves that the outcome justifies the slaughter, that it was "worth it."

In "Studies in Conformity, Generating Consensus, and Why You Are Not Adults" (an essay I earnestly commend to your attention, whenever your time and interest might allow), I addressed this issue using various examples. The economic crisis was where my analysis began, but I expanded that focus:
The fact that most Americans refuse to grow up and be adults has many results. One of them is critically relevant here: most Americans will not accept that actions have consequences, and that those consequences are sometimes irrevocable. Your prayers will not restore over a million slaughtered Iraqis to life. Your wishes will not instantaneously erase the horrifying memories that make an American soldier unable to sleep, incapable of holding a job, and that make him a stranger to his own family. There are times when our actions lead to results that cannot be undone.
Determination and dedication toward a goal can be great virtues, deserving of admiration. But those qualities are not always virtues, and they cannot be regarded as absolutes, to be adopted regardless of the specific context in which they are to be applied. If invading and occupying Iraq constituted a continuing series of war crimes -- which they do -- it is the opposite of virtue to insist that the crimes be executed "competently," which is the strongest criticism offered by many opponents of that criminal enterprise. Unjustified murder is not made less evil when it is accomplished "efficiently." Yet that is the stance endorsed by many Democrats (and others), in the past and still today.

All of this applies with full force to the efforts of the U.S. government to seek "justice" for those apprehended and held as prisoners in the "War on Terror" (or whatever the Obama administration is calling it this week, as they pursue the identical policy under a different name, thus hoping to camouflage the crimes with a new disguise). Basic, longstanding principles of justice were thrown out the window on the first day of that "War"; as a result, every effort to transform the resulting perversion into something more closely approximating "justice" is doomed to failure.

The consequences of this fact reverberate in countless ways, many of them largely unappreciated. Just this morning, I read an article which sets out some of the disastrous results in an especially compelling manner. I strongly recommend you read the entire article: "The Real Price of Trying KSM." The author, David Feige, identifies the various arguments defense lawyers will make, even though they will know in advance that almost all these arguments will be unsuccessful:
Good criminal defense attorneys are seldom deterred by futility, so it's reasonable to expect that KSM's lawyers will make all the arguments there are to make: They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree.
As Feige notes, all these arguments are predictable; they are, indeed, arguments that the defense attorneys are obliged to make if they are to "zealously" represent the interests of their client.

But that's not the problem. This is, and it is a very awful problem:
In an idealized view, our judicial system is insulated from the ribald passions of politics. In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that's where the ultimate effect of a vigorous defense of KSM gets really grim.

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.
All of the very likely results set out by Feige are terrible, but probably the worst is the one concerning torture: that this process "will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute."

This is the "triumph" of our judicial system, and of the greatness that is America, that is now being promised to the American people. You cannot "save" a structure built on a rotted foundation by making cosmetic improvements to a few of the upper floors. And you will not save our judicial system once you have corrupted the foundations on which it is erected.

This is another manifestation of a principle I've discussed before:
Thus, the lesson: when you choose to be a critical part of a system that has become this corrupt -- and the endless corruptions of our corporatist-authoritarian-militarist system have been documented at great length here and in other places -- you will not ameliorate or "save" it. The system will necessarily and inevitably corrupt you.
It is a profoundly terrible lesson -- and it is a lesson that we cannot afford ever to forget.