Streetwise Professor

November 14, 2009

The Dangers of Cosmic Justice

Filed under: Military,Politics — The Professor @ 11:07 am

The Obama administration’s dangerous decision to try Khalid Sheikh Mohammed and 3 other Al Qaeda terrorists in Federal Court in NY is, in a way, quite clarifying.  Or, more accurately, the decision to try them in NY, and to try other Al Qaeda detainees in military tribunals is quite clarifying.  And what it allows us to see is very, very disturbing.

If Obama, Holder, and the Justice Department believed that it was a legal and Constitutional imperative to try terrorists detained at Guantanamo in civilian courts, then the administration would have terminated the tribunal process, and announced that all detainees would be tried in civilian courts on US soil.  Thus, their decision to follow different legal courses for different Al Qaeda detainees implies–necessarily–that there is NO legal obligation to try ANY such detainee in civilian courts.

That means, again as a matter of logic, that not being a decision driven by the law, it was a decision driven by ideology and/or politics.  Of the reasons that Holder cited in his announcement, all I can say is that they brings to mind what Orwell said:  “There are some ideas so  absurd that only an  intellectual could  believe them.”  That is, the reasons are utter abstractions completely divorced from the compelling practical realities.

This raises the question: what is the political calculation here?  Do I want to know the answer?

Thomas Sowell has forcefully argued against falling to the siren song of “cosmic justice.”  For no compelling legal or Constitutional reason–and the decision NOT to try all Gitmo detainees in Federal Court proves irrefutably that there is no such compelling reason–this administration is about to do just that.

One last remark: interesting, isn’t it, that this epochal announcement occurred when Obama is out of the country?  Quite a profile in courage.

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  1. I have no idea what you’re ranting about?

    Comment by Sublime Oblivion — November 14, 2009 @ 7:52 pm

  2. SWP. Not surprised with the one-liner irrelevant brush-off. A routine occurrence.

    So what again is wrong with the decision to try them in civilian courts?, as opposed to closed military courts where it is impossible for them to get a fair hearing? And why does the US have the right to try them at all given that they were not apprehended on US soil, shouldn’t that be left to their respective national governments or the ICC or something?

    Perhaps the reason Obama is proceeding the transition to civilian trials gradually to stave off the inevitable blowhard-militarist-neocon-fascist reaction?

    Is it a crime or anti-American to point out hypocrisy? To ask questions?

    Comment by Sublime Oblivion — November 15, 2009 @ 12:41 am

  3. Out of curiosity–were they self-hating Americans, or foreign ingrates pissing on our hospitality?

    You seem to be far more McCarthyist, xenophobic, and nationalist of late (than is usual for you). What gives?

    9/11 and the other terrorist acts were acts of war committed by illegitimate combatants, and should be treated as such, procedurally and substantively, according to long-established precedents

    Those terrorists were stateless, so the proper comparison is to piracy which is criminal, not an “act of war” (which is only so in the minds of the neocons, to whom you insist you do not belong).

    the trials will jeopardize intelligence methods and sources, and hence will impair our ability to wage the war against Al Qaeda and other extremist elements

    So you favor security over freedom? (Again, contrary to the positions you claim to espouse)

    civilian trials will put an undue and unjust burden on those who serve as jurors.

    Tough luck. That’s part of what you get for being a citizen.

    Any evidence that military courts are incapable of rendering fair verdict? Do you have the slightest acquaintance with US military justice procedures?

    How on earth could they render fair verdicts when its the same institution that hates them (e.g. because it is fighting against them, they tend to have a lot of the “Hurrah America!” crowd, etc), and locked them up without trial at Guantanomo for years on end? Do you really think they would acquit anyone? What incentives do they have to acquit (plenty of disincentives though)? Do you need to have any acquaintance with US military justice to use common sense?

    Comment by Sublime Oblivion — November 15, 2009 @ 2:44 pm

  4. On the other hand, SO, getting a jury in NYC without a strong predisposition to convict will be hard.

    Another big issue at the trial will be KSM having been subjected to torture. What testimony is going to be admissible?

    That’s not to say that the military tribunals are a better way. The previous Administration has landed us in a real mess here.

    Comment by rkka — November 15, 2009 @ 6:51 pm

  5. I thought the political calculation was to try only those cases in cvilian courts that are “slam dunk” winners. The only real blowback will be if civilian courts don’t convict.

    Comment by anonymous — November 17, 2009 @ 6:08 pm

  6. SWP, this issue simply illustrates the different world views people have about war, terrorism, law, and well… reality. In many peoples’ minds, there is only one kind of killing, it’s always bad, and it all should be handled in civilian courts. In my mind, there are different types of killing in different circumstances, and many laws uphold that concept, (different degrees of murder, just war theory, etc.) I am not a lawyer, but I cannot find any way you could justify that the September 11 attacks were anything but an act of war on our country committed by people who had no nation, no flag, and no uniform who specifically targeted civilians. This is a particular kind of killing that needs a particular type of justice applied to it. Military tribunals provide everything that is needed to try these particular illegal combatants. They are NOT pirates, for god’s sake. I understand all the pitfalls of military tribunals, but these illegal combatants made their own choices.

    As for Holder, his appearance before Congress made him look like a buffoon. As for Obama being out of town, yes, interesting. And by the way, why does the trial have to be in New York? Why can’t it be in Washington, D.C? The crime was committed there, too. Oh, but that would be too upsetting for our poor government. Your Sowell reference couldn’t be better. Cosmic Justice is a nice-to-have, but it isn’t reality. War is our reality now and as long as we have this denial that it isn’t, we’re going to face these types of insane decisions time and time again. These trials are going to be a disaster that tries to spin the blame onto the actual victim. This is going to be one big date rape trial where they’re going to do their damndest to prove the girl deserved it. That is NOT justice.

    Comment by Howard Roark — November 23, 2009 @ 12:07 pm

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