Military Commissions

The Bush Administration is going to try to “fix the damage” that was done to the war on terror by the U.S. Supreme Court by seeking legislation to make its military commissions legal.

Some Republican strategists think that this would be a good election-year issue. They hope to portray Republicans as defenders of the safety of the American people and Democrats as people who do not really care if you live or die.

I do not approve of the partisan nature of this presentation. However, I do see this as a dispute between one group of people who do not really care if you are innocent or guilty, and another group who are defenders of the right of the innocent to be left alone and obligation to only punish the guilty. This division stands regardless of the party affiliation of any given individual.

The type of person who can accept Bush’s military commissions is the type that cares too little about truth and justice.

We can see this in two main characteristics that Bush’s military commissions would have that current systems do not have: (1) the use of evidence acquired through coercion (e.g., torture, though the administration does not want to call it that – in the same way that the abusive father would rather call his actions ‘discipline’ rather than ‘abuse’), and (2) admission of secret evidence.

Coerced Evidence

Okay, I have you in my basement and I am set up to get some answers from you. I suspect that you committed a crime sometime in the past. I need you to give me information about your past criminal activity. I have no specific evidence of past criminal activity, and I have no specific crime in mind. Instead, my superiors simply think that there must have been some criminal activity in your past, and I am to find out what it is.

Let us assume that you have never committed a crime. Yet, I have you here under suspicion of having committed a crime, and my job is to get as much information from you as possible about that crime. Because of the nature of my job, your protests that you are innocent are not going to help you at all. Of course, everybody who comes into my chamber first claims to be innocent. My job is to get you to talk.

This means that you have only one way out. You need to convince me that you are guilty. You need to provide me with a convincing story, and some names of some other people that I can then bring into my basement for questioning. Anything else, and I keep asking questions. Claim to be innocent, and I will ignore you. I only listen to confessions of guilt.

Immediately we should see that this type of “justice” system is that it rewards the guilty and punishes the innocent. The innocent suffer more than the guilty, because the innocent have nothing that they can give the questioner to buy him off. The innocent can never ‘cooperate’ with his captors. Even those who are not guilty have an incentive to come up with something – anything – that will convince the questioner of his guilt.

Think about all the people in the 1950s who provided the Senate Committee on Unamerican Activities with names of friends and associates when they were only threatened with the loss of their jobs – lists they often simply made up to buy the good will of their interrogators.

Now, we are going to set up a court. In that court, anything you say to me in my basement is admissible. After you come up with a story, I will pass that story on to the judge.

There is no way that an individual with a fondness for truth and justice could support a court such as this.

Secret Evidence

Have you ever been in a situation where others condemned you because they misinterpreted something you did or jumped to conclusions? Have you ever heard of others gathering around to talk about somebody behind his back, effectively convicting him of some transgression, without giving that person any opportunity to answer the charges?

Would you describe this type of situation as a model system for discovering the truth and of justice towards those who are the targets of these types of discussions?

The use of secret evidence has the same relation to truth and justice as the gossip circle. The gossipers all bring their “evidence” to the “trial” and present it to the others, along with their interpretation of that evidence. The accused is given no opportunity to hear the evidence against him (so he can say which claims are true and which are false, and offer evidence against the false claims, or so he can explain the so-called evidence.

Let us assume that Afghan1 is accused of belonging to Al-Queida. Afghan2 went to the Americans and spoke of Afghan1’s involvement, leading to the arrest and imprisonment of Afghan1. The military accepts Afghan2’s testimony as “secret evidence” – they do not want to reveal the fact that Afghan2 was an informant. However, as it turns out, Afghan2’s daughter claimed to have been in love with Afghan1, and Afghan2 was going to have no part of it. He told the Americans that Afghan1 was a member of Al-Queida because he wanted to get Afghan1 away from his daughter.

Or, let us assume that Afghan2 was an innocent Afghani being subject to intensive interrogation. He knows that the only way he can get the questioning to end is to give the Americans a convincing story. So, he tells a story that involves Afghan1. The Americans, of course, do not want to reveal that the only evidence they have against Afghan1 are the statements coerced from Afghan2. Bush’s military commissions with their secret evidence would turn these types of accusations into convictions. The problem with allowing secret evidence is that they are seriously unreliable. Nobody who has a love of truth or justice can support destroying a man’s life based on this type of evidence. Nobody truly interested in truth and justice could support this element of Bush’s military commissions.

Universal Moral Principles

A fundamental part of morality says that the claim, “X is permissible” means “Anybody in a position to do X may do so.”

The Bush Administration and any legislators who support this legislation will be telling the world, “If you want to admit coerced testimony and secret evidence in your courts, go right ahead. We are here to say that these are perfectly acceptable practices. Saying that these are acceptable practices means anybody can use them. This goes for you, China, North Korea, Iran, Venezuela, and Russia. All of you should feel free to use coerced testimony and secret evidence.

This principle of universalizability also says that we have to go back into the past and tell every government that we condemned for using coerced testimony and secret evidence that we were wrong. “We wish to extend our sincere regrets to the governments of the former Soviet Union, Communist China, North Korea, North Vietnam, Libya, Iraq, Iran, and every former Easter-bloc country. When we condemned you for using coerced testimony and secret evidence, we falsely accused you of acting inappropriately. By this vote to establish these military commissions, we hereby acknowledge that you were right, and we were wrong, at least on this matter. Please accept our apology for our error.”

I have no intention of endorsing this position. However, this means that I have to put the United States government in the same moral category as I would place any country that used coerced testimony and secret evidence in their trials. If it was wrong for the former Soviet Union to do this, it is just as wrong for the United States government to do this.

I would like to say that I live in a country that is better than those countries that care so little for truth and justice. I would like to live under a President who realizes that it there is no virtue in telling the world that they can go ahead and use coerced testimony and secret evidence if they want to; we see nothing objectionable in this practice.

This point was famously stated by Justice Robert H. Jackson in his opening statement at the Nuremberg Trials, that,

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice.

Anger

One way to think about the issue and to help to determine its justice is to actually imagine drinking from this chalice.

Imagine a situation where, for example, a local revolt results in the capture of an American embassy with a staff of 200 Americans. That nation decides to put these Americans on trial. At the trial, they hold that it is perfectly acceptable to use coerced testimony and secret evidence – evidence they claim to have about what the Americans were doing in that embassy that they do not want to share with the world. Imagine that they then subject those Americans to the same intensive interrogation that we have used. Imagine that they claim to be doing this because of their need for national security.

As we imagine drinking from this chalice, I hold that it is very easy to realize that it is, indeed, poisoned. There would be such an outrage in this country that it would be easy to motivate the country into a state of full-scale war against such a country.

As we imagine this, we should imagine the effect that it will have on others in the world to watch America convict people in these types of trials. If this type of situation would flame America into attacking a foreign country that engaged in such practices, we can only expect that it will inflame others to attack America (and Americans) who engage in such practices.

It is hard enough dealing with Muslim fundamentalists when they are wrong about America. We do not make our situation any better or any more secure when we act in ways the Bush Administration acts to prove that these Muslim fundamentalists were right about us all along.

Let’s not give them that particular weapon to use against us.