Tuesday, November 17, 2009

The New York Terrorist Trials

A great many Republican politicians and pundits, and a few Democrats, apparently think that rights are the blessings of government - that government bestows rights and governments can freely take rights away for even light and transient reasons.

Since the announcement came out that some of the people captured and accused of involvement in the 9/11 hijackings were to be tried in civil court in New York "like common criminals", many have protested that such a move is objectionable on the basis that it grants the accused certain rights. There is no talk of these being inalienable, human rights - that governments are instituted to secure rights such as these. Instead, the argument is grounded on a seemingly unquestioned premise that rights are to be spoken of only as conveniences one has at the whim of those holding political power.

The theory that rights are government blessings is the theory that there is no such thing as a just or unjust government. Government can do no wrong if right and wrong are determined by what the government does. The possibility of just and unjust government requires that there is a standard outside of government that dictates what governments may or may not morally do.

At the same time, desirism denies that there are intrinsic moral properties - some type of fundamental moral ought that comes from some sort of great law-giver (either God or evolution) that dictates universal moral oughts.

Rights, in desire utilitarian terms, are facts about relationships between malleable desires and other desires. They are facts about the value of aversions to governments committing certain types of acts - curtailing free speech, arbitrarily arresting and imprisoning citizens at the whim of the head of state, denying people a say in selecting who will make the laws, etc.

These people who object to a public trial are people who clearly have little or no desire to see the government as a protector of rights. They have little or no aversion to the government simply sweeping away rights as a matter of convenience. If they have no desire to see rights protected generally, then they have no desire to protect your rights or to see governments sweep your rights aside on a whim. And they broadcast the same attitude to the rest of the world - telling the whole global community that humans have only those rights that their government tells them they have and no more.

Clearly, there are some circumstances in which there may be reason to deny a prisoner an open trial. Let us assume that somebody working for the German army is captured early in 1944 trying to smuggle plans to Nazi Germany, or somebody captured today needs only to broadcast the activation code for a nuclear bomb he has hidden in a major city. We clearly have good reason to deny that person an opportunity to broadcast the information he wants to get out. Absolute rules fail absolutely.

However, rights do have a weight, and they are not to be violated for trivial reasons.

We hear reasons like:

(1) We do not want to give these people a platform at which to speak. We do not want to give them a platform that they can then use to mock their victims.

Obviously, the right to a trial can be revoked by the government whenever there is a risk of the accused making statements that the government disapproves of what they say. This is not a case of the accused giving some vital piece of information to those who would use it to do great harm. This is a case of shutting people up because those with power do not want them to speak.

There are legitimate reasons to keep people from speaking. However, "Because I do not like what you would say" is not a good reason. It is, in fact, a reason that substantially denies that there is a right to freedom of speech. If the government has the right to silence people who might say something those with power disagree with, then none of us can claim a right to speak. We must all, instead, accept that we may be silenced as well if the government should not approve of our message.

The right to freedom of speech means nothing if it is not construed as a right to say things that others might not want to hear.

(2) The trial will be a circus. It will be out of control.

Again, these protestors are asserting the principle that the right to a trial can be revoked whenever the government declares that it cannot have an orderly trial. Of course, I can think of a great many circumstances in which the government may declare that it cannot have an orderly trial. They correspond to any case in which the government might want to lock somebody away without a trial.

Let us imagine, as a hypothetical example, that the Democrats have set up their campaign headquarters at the Watergate Hotel, and a group of Republicans then get caught trying to bug the Democrats. Let us assume that the President is somebody who wants to protect himself from what might be revealed in any public trial or hearings of those involved. All that President would have to do, if we establish such a principle, is declare that the trial would be a circus and, for that reason alone, must only be held behind closed doors where the words of the accused cannot be heard by the general public.

A politician or pundit who has particularly warm feelings for tyranny and for the government's ability to silence its critics is going to have particularly warm feelings for the idea that it can suspend any trial that the government declares would be a 'circus'.

The biggest circus that a tyranny has to fear is one that exposes the depths of its tyranny.

There are others, but this is a fine start for such a confined space.

In all cases where people are arguing against such a trial, I invite you, he reader, to look for the principle that lies at the heart of their alleged reason to deny such a trial. Look at what it says about the speaker's desire for fair trials and his aversion to the arbitrary exercise of government power. Then ask yourself how secure you would be if those sentiments became universal.


Hume's Ghost said...

There's also the complaint that the trials should not go occur because some (or perhaps many) of these persons were treated illegally (i.e. inhumanely and/or tortured) and the trials with thus put the CIA or "vital" defense measures on trial.

Can you think of a more nihilistic argument to apply to the legal system? That if those accused of crimes are tortured they deserve a less impartial hearing, a less fair trial ... that their rights are inversely proportional to how much they're mistreated.

Jayman said...

Here's a list of reasons not to hold the trial in NY according to a Republican blog:

1] The trials are wholly unnecessary; the Administration is holding some enemy combatants without trial and trying others through the military commission system, thus conceding that it has alternatives. As a result, any risks, expenses or other downsides of the trials are being undertaken solely for the purpose of empty symbolism.

2] The trials risk disclosure of sensitive intelligence information and sources. This is the most significant objection of all.

3] The trials create a heightened risk or incentive for a terrorist attack/jailbreak effort in Manhattan.

4] The additional security required to guard against #3 will cost the federal and city governments a fortune, interfere with the administration of justice in a busy federal district and busy federal prison, add to the traffic and delays already extant in lower Manhattan, and place a great burden on the jurors, judge, and prosecutors.

5] The detainees, as they have shown in the past, are especially dangerous to guards, a problem that’s more acute when in transit or in civilian prisons than in a facility like Guantanamo that’s designed to house them.

6] The trials will give these extremists the opportunity to grandstand.

7] There is, inherent in civilian criminal trials and given the likelihood that the defense will seek to play politics with the trial, some risk of one or more acquittals or hung juries that would give a propaganda victory to the terrorists and destroy what little symbolic value the trials have if the defendants are remanded to custody after being acquitted.

8] There is a risk that, to guard against #7, rules and precedents governing criminal procedure will be distorted in ways that have lingering effects on the regular justice system.

9] Trying terrorists in civilian courts perversely rewards their war crimes; they have not earned the rights of either American citizens nor lawful combatants under international law, and should not be granted them.

fatcat44 said...

I guess we should have put the Japanese and Germans on trial instead of engaging in war with them. I did not see any Japanese ever go on trial. Our court system are for domestic laws breakeers. Terrorism is a war and should be done in military tribunes. Even the supreme court upholds this. Who are you and Obama to know better than what has been set up and used for decades. This is reckless trying them in a civil court. There were no moranda rights. Do our soldier have to start reading prisoners their moranda rights now on?

Guess who is going to be on trial, not the terrorist, but the USA. Think about it for a minute. And learn somethings about the government and international affairs.