Civil Liberties: Moussaoui's, Al Qaeda's and Ours -- 3/16/06
Good morning, everyone. Spring Break here at I.U. – hope yours is good wherever it finds you.
A couple of stories to follow this week.
First, there is the curious story about the FAA lawyer in the Moussaoui sentencing trial. The
lawyer, Carla Martin, seems to have single-handedly undermined the
federal government’s effort to get the death penalty for 9/11
conspirator Zacarias Moussaoui. In
opposition to the expressed orders of the judge in the case that the
witnesses should not be exposed to the trial proceedings so that they
could not alter their testimony, Martin sent emails to seven witnesses,
strategizing about what they were going to say on the stand. (Adam
Liptak, Crossing a Fine Line on Witness Coaching, NYT, 3/16/06.) The judge called her behavior “egregious,” and said that the federal case against Moussaoui had to proceed without the testimony from the witnesses. Prosecutors say this deals their case a death blow, and have asked the judge to reconsider. (Jerry Markon, Prosecutors Scramble to Salvage 9/11 Case After Ruling, WaPo, 3/16/06.)
Since Moussaoui has pled guilty, it is hard to see what the fuss is about here. What is at stake is not whether he gets off free (he won’t) but whether he faces the death penalty or life imprisonment. It
will help to understand what is happening here if we apply the
procedural/substantive distinction we lay out in Chapters 1 and 2 of KTR (pp. 10-11, 47-48). We
explain that often in procedural cultures (like ours) it is more
important to ensure that the rules are followed properly than to
achieve some particular substantive outcome. We put our faith in
procedural due process, to be sure that the rules treat everyone fairly
and impartially, and trust that fair results will follow. We
could of course say, “Well, we know Moussaoui is guilty, he has
confessed after all, so what difference does it make if we ignore this
witness tampering at the sentencing stage. What the judge in the case
has to grapple with is the fact that because our system guarantees fair
rules to everyone, to deny Moussaoui his rights will jeopardize the
rights of all of us. If they can be waived for him, they can be waived for anyone.
This issue throws into relief the ongoing scandal of the American treatment of prisoners at Abu Ghraib and at Guantanamo Bay. Some
have tried to claim that because the stakes are so huge here
(preventing a future terrorist attack) or because these prisoners are
not on American soil or are not American citizens, that American
procedural guarantees do not apply. Others argue that we are bound by
the Geneva Convention and by our own standards of morals and decency to
protect the human rights of those we take prisoner. Perhaps
the most compelling reason against the torture, offered by critics such
as Senator John McCain, himself a former prisoner of war of the
Vietnamese, is that to treat the captives as we fear they would treat
us sinks us to their level and endangers the American democratic ethic
which is what we want above all to protect. The online journal
Salon.com has excellent in depth coverage of the Abu Ghraib scandal and
has just put up on its site an archive of 279 photos and 19 videos of
the abuse, obtained form the Army’s Criminal Investigation Command.
(Joan Walsh, The Abu Ghraib Files, salon.com.)
Take a look at those photos and ask yourself what difference it makes if the United States engages in torture of its prisoners. Is
this kind of substantive behavior (treating people as if they are
guilty without a trial and taking an “ends justify the means” approach)
ever justified? In the Abu Ghraib case, who
is responsible for maintaining American standards of behavior – the
people on the ground or the people in charge? Does the Abu Ghraib situation shed any like on the judge’s ruling in the Moussaoui trial?
***
Other stories to follow this week. President
Bush is issuing a document today reaffirming the “Bush Doctrine” of
preemptive war that we discuss in Chapter 18 (pp. 811-812). (Peter
Baker, Bush to Restate Terror Strategy, WaPo, 3/16/06.) Essentially, the document will recommit the U.S. to the strategy we embarked on with the war against Iraq in 2002. Should that commitment be tempered by any of the events of the last three years?
Finally, take a look at the NYT article about how Republicans are seizing on Senator Russ Feingold’s efforts to censure President Bush over the NSA spying issue. With
Bush’s approval ratings at new lows in the polls, Republicans need to
rally their base to get them to turn out in the November congressional
elections. Declaring that it is necessary to vote Republican in order
to hold off censure or even impeachment proceedings gives them a way to
excite voters who are frustrated with the previously popular
president’s performance since he was reelected. (David D. Kirkpatrick, Call for Censure is Rallying Cry to Bush’s Base, NYT 3/16/06.) Feingold’s
efforts have not been met with any marked success – far more senators
voted to censure President Bill Clinton over the Monica Lewinsky
scandal than have stepped forward to support Feingold on this civil
liberties issue. Why?