November 15, 2010

Some News: Show Trials Are Bad and Lead to Bad Results

I haven't addressed several key issues for close to a year. Since I tend to be somewhat, well, unconventional in my approach, perhaps I should indicate how I use certain terms. In this manner, those few people who read this might actually have some idea what the hell I'm talking about. The nerve of me!

In "Concerning the State, the Law, and Show Trials," I wrote:
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.
When a State announces in advance that, even if a defendant is found not guilty, he will nonetheless be imprisoned for the rest of his life, the trial is transformed from an inquiry into the question of individual guilt or innocence and the related question of whether punishment should be imposed, to an unalloyed exercise in the glorification of State power.

Moreover, it is an especially dangerous exercise of this kind: the State offers the pretense of a trial -- thus allowing the State's defenders to laud the State's fairness, impartiality and objectivity -- at the same time the State itself has made clear beyond all question that the State will punish the defendant in notably severe fashion regardless of the trial verdict. Thus, in terms of the result, the State's power is everything and the trial process itself is nothing.

This, in fact, is precisely what the Obama Administration had stated about the then-planned trials of Khalid Sheikh Mohammed and four other alleged 9/11 co-conspirators. As I wrote a year ago in "Hey, I Know! Let's Put On a Show Trial!":
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."
I went on to note that, "Of course this will be a show trial," and referred readers to the earlier essay.

A year later, I must add that it is inconceivable to me that, if these trials were to take place, any of the defendants would be found not guilty regardless of what the evidence indicated. I say this because of the general cultural atmosphere in the United States of steadily increasing, generalized detestation and hatred of Muslims. As one symptom of this growing irrationality, I offer the hysteria about the "Ground Zero Mosque," which I wrote about here and here.

It is undeniably true (as I discussed) that the "mosque" controversy was an entirely phony one, in the sense that it relied on a central series of staggering lies and misrepresentations. But it was not an isolated instance of hatred for Muslims and Islam. You may have missed a bit of news from the recent election, concerning Oklahoma's "Save Our State" amendment. You can learn about it in this interesting article:
Oklahomans have a plan to save the country. It doesn't address the reverberations of the financial crisis or outline a way to pay for social services on a limited budget. Instead, they've fashioned a "pre-emptive strike" against Islamic law in the United States. Last week, 70 percent of Oklahoma's electorate approved this amendment to the state's Constitution: "The (Oklahoma) Courts ... when exercising their judicial authority ... shall not consider international law or Sharia Law."

Oklahoma isn't alone. Arizona is considering a bill that would prohibit state judges from "rely(ing) on any body of religious sectarian law or foreign law," and a similar bill has just been introduced in the South Carolina legislature. Whether more states will hop on the bandwagon may depend on the outcome of a lawsuit filed in Oklahoma federal district court that contends that the amendment violates the First Amendment. But the amendment is not just of dubious constitutionality; it's dangerous and unnecessary on the merits.
U.S. District Judge Vicki Miles-LaGrange has called a halt to this insanity for the moment, pending a hearing on November 22 about issuance of a preliminary injunction against certification of the amendment. (You can read the full text of the proposed amendment here.)

I repeat: 70 percent of those who voted on the measure approved this amendment, and two other states are already considering similar measures. Given this general atmosphere, imagine the courage that would be required for a juror to declare Khalid Sheikh Mohammed or one of the other co-defendants not guilty, even if she were convinced that was the correct verdict, and imagine the threats that might be directed against her if she did. But her courage, even if matched by similar courage on the part of the required number of other jurors, would be entirely irrelevant. The State already announced that it would imprison Mohammed forever even if he was found not guilty.

But the Obama Administration has now decided that all this folderol with show trials is simply too, too tiresome. Besides, since the Obama Administration can now murder anyone they want for whatever reason they invent, who needs trials? Trials are so twentieth century (not a century we would have supposed would be held up as a model in this regard, but the times advance!). So to hell with it: just lock 'em up!


Nonetheless, the lamentations arise. Oh, no! The rule of law has been abandoned! Again! (When did an odiously transparent show trial become synonymous with "the rule of law"? You must have dozed off for a year or two.) Civilization itself is imperiled!

Oh, please, please, please! Don't deprive us of our travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham!

It is bad enough when the hollow, empty forms of "justice" come to represent what is supposedly justice itself. It appears that one of the requirements of citizenship in the United States of Insanity is an eager willingness to support the vicious pretenses of civilized society in all their variations. (And never you mind that Obama & Friends can order any of us killed whenever they wish. I'm certain that doesn't imperil "the rule of law" or civilization in any conceivable manner.)

To the extent you support the fatal confusion of the mockery of justice with justice in any meaningful sense, you open the door to still worse outcomes. This was one of the major points of my earlier article about the Mohammed trial; too predictably, it was a point that very few people appeared to understand. This allows me the opportunity to emphasize it once again.

I excerpted an unusually valuable article by David Feige, and he made one argument that I considered to be of singular importance. Please consult my previous post for a lengthier excerpt from Feige. This is the critical passage from his piece:
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.
About this, I can do no better than to offer my earlier concluding paragraphs:
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.
As far as I'm concerned, if it turns out that we will be spared an abominable show trial -- especially a nauseating show trial that "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" -- I say: Thank God. It is not that I think for a moment that the Obama Administration (or any future administration) will abandon the ongoing use of torture (which Obama never "ended," despite all his claims and those of his apologists that he did) or their determination to more completely normalize torture, even making it a recognized and "legitimate" element of our legal system -- but at least they will not be able to achieve that goal by this particular route.

As for Feige's observation that a show trial of this kind "will still be far better than any of the available alternatives," I have to say that, when the "best" the system allows is an outcome this heinous, the only decent and genuinely civilized response is to refuse to have anything at all to do with it.

Personally, I prefer my murderous, bloody tyranny straight. Play your charades if you must. I shall not be participating.