by Barry Edelson



We must try our enemies, even after death

Even for those who recoil at the very idea of the state using its power to end a human life, the assassination of someone as wicked as Anwar al-Awlaki nonetheless brings a sense of relief and satisfaction, if not quite fist-pumping triumph. If a citizen betrays his nation by actively plotting to murder his fellow countrymen and destroy his government, and the punishment for this treason is death, then it is nonsensical to argue that such an individual is not deserving of that punishment, regardless of how one feels about the death penalty per se.

What is evidently lacking in the act of blowing someone to oblivion by a missile fired from a predator drone over a foreign country many thousands of miles away, is any respect for due process, or what some casually dismiss as the "niceties" of the law. These niceties, however, are the very definition of a free country, and what distinguish us from the despotism that is both the incubator and objective of the terrorists who would kill us if they could. For whatever reasons, many people are unable to grasp the simple concept that their own rights are at risk when the rights of others, including the guilty, are abrogated. No tears may have been shed by Americans over the demise of al-Awlaki or that of his presumed personal hero, Osama bin Laden, a few months earlier. But their evident and self-proclaimed guilt is beside the point. At any time over the last decade we could have properly held a wake for the death of the Constitutional rights we profess to consider sacrosanct.

The Obama Administration, like its predecessor, apparently contemplated at some length the legal rationales for its targeting of the individual leaders of our terrorist enemies, and the many ramifications of a policy of detention, interrogation and assassination in far-away lands. Charlie Savage's excellent report in today's New York Times reveals in some detail how the government has grappled with these difficult issues. The problem with all this secret deliberation is that it implicitly relies on the public's trust, which is nowhere to be gleaned from the nation's founding documents. The current President, not unlike his immediate predecessor who was much maligned for his devotion to secrecy and seemingly callous indifference towards the law, is relying on an inherently weak argument to make the case for the kind of warfare he is undertaking in our name. It is not cogent to say, "You just have to believe that we wouldn't just go out to capture and kill people without being careful and serious about it." That just isn't good enough. If we are truly a nation of laws, and if justice is done on our behalf, then we and the accused are both entitled to see the evidence for ourselves.

In a column in Slate last week, Christopher Hitchens lay down the challenge to those of us who are bothered by the consequences of these so-called extrajudicial killings to say what we would do instead. The most obvious solution, but one with many drawbacks, is a trial in absentia. If the government believes it has a case of treason to make against a citizen, or a case of mass murder against a noncitizen, and the accused is beyond the reach of the law, it can still try the accused before giving the order to have him killed. This kind of proceeding has been undertaken many times by many countries, including the United States. Not having the accused present in court need not be an obstacle to holding a genuine trial with a credible outcome. However, the government for good reason would be reluctant to hold a public trial: because it might disclose too much valuable intelligence, drive the perpetrator even further underground, and thereby make it even more difficult to bring him to justice. There is also the risk of delay: during the course of even a quick trial, good opportunities to apprehend or kill the defendant might very well come and go. There is, of course, the option of holding a secret military tribunal, whose proceedings would at least be on record for historians to ponder at some future date, but that hardly satisfies the public's right to know what lethal measures the government is taking.

So here is what I would propose to do instead: try the accused after the fact. If the fugitive from justice cannot realistically be apprehended and brought "home" for trial, and the executive branch feels deeply that it has the legal authority to kill him, then it has an obligation to makes the case post-mortem that an assassination met the criteria of a legal execution. It may seem a pointless exercise and a waste of public funds to try someone who has already received his punishment. However, it would not be a trial in the literal sense so much as a judicial inquest, in which it is not the cause of death but the justifications for it that are brought to light for the public record. If anyone wished to advocate on behalf of the deceased, by all means he should have an opportunity to do so. (This in itself could be an intelligence bonanza, by bringing enemy sympathizers into the light.) This might also go a long way towards restoring the world's regard for our historical devotion to the law, and, more important, our own faith in the government's honest prosecution of the war against extremists. Whether the proceeding was held in a civilian court or a military one is hardly important, as long as it was open to public scrutiny and the evidence not subject to so many redactions as to render it meaningless.

A parallel to a post-mortem "trial" is the Truth and Reconciliation Commission, a concept that arose in several countries emerging from severe domestic conflict, most famously in South Africa. The purpose of the hearings was not to mete out punishment but to shine the light of day upon ugly realities, and bring catharsis and healing through the open acknowledgement of a society's festering wounds. At the outset, skeptics invariably argue that the absence of overt justice makes such a body's work fundamentally meaningless. But by the end of the process, in which heart-rending tales of suffering and confessions of guilt and complicity are daily and agonizingly laid bare for the world to see, few could still believe that the process failed to have a salient effect on the nation.

The emotional trauma that Americans have suffered at the hands of al-Qaeda and its imitators pales alongside the agonies of those who have endured decades of apartheid, tyranny and/or civil war. But the public proceedings would serve a similar purpose: to enable us to remain true to our traditions and ideals — in America's case, equality before the law — even in the most difficult circumstances. Perhaps even more important, it would enable those directly affected by the crimes committed by our enemies an opportunity to do something that is critical to the process of justice: to bear witness. Even in the absence of the accused, the ability to stand up in court, to hold the attention of the world, and describe in one's own voice how one has been made to suffer unjustly at the hands of another, is a powerful incentive to further acts of justice, and to further acts of witness.

An open trial can be slow, maddening, inconclusive and occasionally inept. But there is nothing more inimical to freedom than secrecy. The demand for justice is quintessentially American, and a more powerful weapon than any bomb or missile to wield against our enemies.

October 9, 2011


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