A Good Death
It is generally understood that, like people, institutions also have lives, go through growth spurts, weather transitions and endure crises. During bleak periods it seems that institutions also face death. Last year a few Wall Street giants died in their sleep, not painless deaths, but lives snuffed out in the night. Some deaths are slow. Centuries of predictions of the church’s demise still ring hollow, but religious life as the church has known it appears to be struggling for breath. As the sisters and brothers in religious congregations ask themselves, “Have we fulfilled God’s purpose?” most Catholics would answer with a grateful, resounding yes. Religious communities may be at a turning point or a natural endpoint—the flower’s death in due time, one lovely bloom off the rose of the church for now.
What are the hallmarks of a good death, institutionally speaking? News of the closure of the National Pastoral Life Center in New York on Nov. 30 prompts the question. Surely a good death includes having had some success toward a worthy goal. The N.P.L.C., founded by Msgr. Philip J. Murnion 25 years ago, aimed to support the church’s parish ministry by attending to its leaders. The center faithfully served dioceses and parish leaders—pastors and staff primarily, but also core parishioners who came to its conferences and read its magazine, Church. The center did not long survive its founder’s death. The center’s considerable achievements deserve to be acknowledged and remembered. Two continue: the Catholic Common Ground Initiative moves to the Cardinal Joseph Bernardin Center for Theology and Ministry at the Catholic Theological Union in Chicago. The Roundtable for Diocesan Social Action Directors will be relocated in the Baltimore/Washington area. Who will now focus their energies on supporting parish leaders?
The Geography of Justice
Depending upon whom you consult, the federal courthouse in lower Manhattan, just blocks from ground zero, is either the best or the worst place to try Khalid Shaikh Mohammed and four other accused terrorist co-conspirators. Attorney General Eric Holder’s announcement on Nov. 13 about plans for the trials of the 9/11 suspects set off a fierce debate over the proper location and type of trial.
By opting for a civilian trial, the Obama administration is definitively repudiating the Bush policy of circumventing civilian courts and relying on offshore detention locations (including Guantánamo Bay) and military commissions to try suspected terrorists. A civilian trial in any venue risks giving the suspects a platform for inflammatory rhetoric against the United States. The likelihood of such a publicity nightmare is bolstered by the treatment these suspects have received while in U.S. custody, including repeated waterboarding.
Raw geography has shaped the debate in New York itself. Local opponents of the decision cite the fear of reopening deep wounds that survivors of the terrorist attacks and the families of victims can scarcely bear. And could a pool of New Yorkers yield truly impartial jurors?
Most opponents of civilian trials object to offering the standard protections of the American criminal justice system to these particular defendants. But is it really possible to construct a coherent argument that starts with the premise that certain criminals do not deserve the routine due process rights found in U.S. law? That question directs attention back to the shadowy legal territory between the categories of enemy combatant and domestic criminal. Perhaps Manhattan turns out to be the perfect showplace of American justice. Let the trials begin.
Inquiring Minds
The Medill Innocence Project at Northwestern University has been widely praised for its work investigating the wrongful prosecution of criminal defendants. Thanks to research conducted by journalism students at Medill, 11 prisoners have been exonerated, including five who were on death row. Now the Innocence Project is the focus of an inquiry conducted by the Cook County prosecutor’s office. Officials are seeking access to student notes and class curriculum materials related to an investigation that lead to the exoneration of Anthony McKinney, who was serving a life sentence. Prosecutors contend that students conducted their research in an improper manner and that although they later published an article on the case, the class materials they used are not protected by the laws that shield professional journalists. (The Chicago Sun-Times ultimately published an article based in part on the students’ research.)
The passage of a proposed federal shield law that seeks to protect freelancers and bloggers as well as traditional reporters would be an important step toward clarifying the status of all working journalists. The Medill Innocence Project is proof that important work can be done by any reporter with the right blend of curiosity and determination. Whether a reporter’s work appears in print or online or simply serves as a catalyst for other journalists should not diminish the writer’s legal protections.
Regarding “Inquiring Minds” I find it interesting that prosecutors contend that students, whose research lead to the exoneration of a man on death row, had conducted their research in an improper manner”. One must conclude that for the exonerated man, Anthony McKinney, to have been sentenced to death, there must have been a considerable amount of impropriety by those who engineered his conviction.
It's difficult to decide where to start in cataloguing the errors of the terrorism trials editorial above. There were 10 cases discussed in the announcement. 5 were referred back to DoD for continued military prosecution, while 5 others were slated for NY trials in civilian court. So the idea that the US is turning away from military trials is simply incorrect, embarrassingly so if you've actually read the announcement as I suspect the editorial writers did not.
There are many reasons why civilian trials are not indicated, first of which is the defendants status as illegal combatants. Illegal combatants are the vilest of combatants because, by their nature, they act in ways that increase the deaths of innocent civilians. To combat this, they are to be given the harshest of treatment in order to discourage them and save lives. The Holder announcement gives superior treatment to those who attack civilians while those who attack the military receive military justice. This is contrary to good practice and endangers innocent life.
The incentives to future terrorists are clear, if perverse. Go attack innocents, women and children, those without uniforms who have the greatest expectation of safety. Committing these evil acts will improve your rights in US Courts should you be captured.
We have systematically eroded the protections of civilians by the Geneva Conventions by improperly handling war crimes in Iraq and Afghanistan. That is to say, past the first month, there were so many war crimes that JAG gave up prosecuting the vast majority of them. People have, are, and will continue to die of this. The Holder decision does not help clarify what has become a regrettably muddy situation.
Both US civilian courts and US military courts provide justice. If they do not, we need to fix that court system. The editorial implies that somehow military courts are unjust or inferior. They are not. They are courts that are designed to provide justice in rather particular sets of circumstances. The 9/11 defendants fit those circumstances.
The discouragement of future illegal combatants in order to save civilian lives is the first consideration of which US court system to use in the case of members of an organization which had declared war on the US and are accused of committing war crimes by not following the laws of war.
We should not countenance injustice which is why the statements of administration officials that defendants would be held preventively indefinitely if they were found not guilty is another mark against holding civilian trials. US civilian justice has no place for preventative detentions and that record should remain. We risk losing that. It is a useless risk.
In a military court, a not guilty verdict against a POW simply returns him back to the general POW pool. There is no need for special, innovative detention regimes that may prove problematic down the road. POWs are detained until the end of the war.
It is nonsensical to pretend that all have equal rights in the US justice system. US soldiers do not have equal rights under the UCMJ as civilians do under the civilian system. They never have. Why illegal enemy combatants accused of mass murder should get more protections than a US Army supply sergeant accused of stealing potatoes is left rather unclear.
Certain criminals, soldiers without uniforms, have always had fewer rights. It is our treaty obligation under the Geneva Conventions to give them fewer rights. These illegal combatants lose these rights by their evil acts, that is by mingling with civilians without uniform. If one is to discuss the issue in an editorial, a basic knowledge of US and international practice would be helpful.
Your errors are so many, I really do not know where to begin.
(1) The United States is not at war. According to the Roman Catholic theory of "just war," a state of war can exist only between two nations. See for example Saint Thomas Aquinas. Moreover, the same rule has been an agreed part of international law since at least 1500 A.D.
Of course, in the case of the US, our Constitution says that a state of war exists only when the US Congress declares war against another nation. The last time the US was at war was in 1941-1945
The idea that there can be a war against terrorism is-simply-insane. Terrorism is a technique, not a nation state.
(2) The "terrorists" (as ignorant folk call them) are merely alleged criminals. If you blow up my home, you are a criminal, and not a nations state at war If you blow up a big house with 2500 folk in it, it still is a crime and not a war.
The US Constitution, in at least three places,says that "NO PERSON"can be jailed or executed without a trial. It does not say "no citizen." It also says that treaties approved by the President and Senate, such as the various Geneva conventions, are the highest law of the land.
The Constitution is maintaining the rules of English Common Law since Magna Carta in 1215 In which King John promised that he would execute, jail, or in any way harm NO MAN without a trial. Note that Magan Carta says "NO MAN," not "no subject."
In other words it has been the rule in Anglo-American law since at least 1215 that the state cannot harm any person of any nationality anywhere in the world without a trial. Except in times of war-when the Geneva Conventions apply. But, of course, the US is not now at war, so habeas corpus applies everywhere and always.
(3) The US fought a undeclared (and thus unconstitutional and illegal war) against Afghanistan. We won, in the sense that we overthrew the Taliban government and its leaders no longer rule; they are dead or in hiding. Since 2001, the US has not been at war in Afghanistan;it has been not been fighting a war; the war was won in 2001. It has been holding down an occupied nation.
(4) If you want vengeance for the so-called events of "9-11," you've already taken it. The folk against whom the US is committing aggression in 2009 are NOT the "Taliban" of 2001. Those guys are dead. The "Taliban" of 2009 are an entirely new group of patriots that don't like their country overrun by foreign troops. As for Al Qadea,there aren't any in Afghanistan; the few still alive are in Pakistan or elsewhere.
The idea that there are any "illegal combatants" is ludicrous. There are two groups. (1) The folk who blew up the Twin Towers are, under American and international law for the past 700 years, alleged criminals and thus, under the Constitution, MUST be tried in a civilian court. (2)The "Taliban" of 2009 are patriots defending themselves from the American illegal combatants in Afghanistan.
As has been noted, Mohammed could have legitimately been held as an unlawful combatant until the end of hostilities without any trial, he could have been tried in a military court as a captured combatant, or he could have been tried in the US court system, as Holder has decided. It is worth noting that Holder publicly stated that he was quite confident that the evidence would result in a conviction. He also went on to imply that the death penalty is far more common in US civilian court than in the military court system, which has not executed a person found guilty of a capital offense or any reason for two generations. Since Holder has determined to try other Gitmo terrorists in the military system, it is reasonable to conclude that he does not have as strong a case against them as he has for Mohammed and hence he has a better chance for a conviction in the military courts for these prisoners.
It could simply be that Holder wants Mohammed not only found guilty, but executed. That likely wouldn't happen in the military system.
In an attempt to satify both sides, is it possible to convene a part military, part civilian tribunal to try the Five Terrorists, doing so in the Federal Courthouse in lower Manhattan, or maybe somewhere other than NYC, even, perhaps, at Guantanimo? A civilian Judge would preside along with a military Prosecutor,a civilian Defense Attorney and a Jury compose of a mix of military and civilian jurors.
Is this pure nonsense, or might it contain seminal possibility? I leave that to heads far wiser than mine to decide.