Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below, he examines our nation’s concepts of vengeance and justice in light of alleged 9/11 mastermind Khalid Sheikh Mohammed’s forthcoming trial in New York City. See Lim’s previous OUPblogs here.
There are four reasons which have been supplied to suggest that Khalid Sheikh Mohammed (KSM) does not deserve a civilian trial in New York:
1. This is what KSM wants – a show trial, and he should not get what he desires.
2. The trial will increase the risks of a terrorist attack in New York.
3. Classified information will be released in a civilian court trial, to the benefit of potential future terrorists.
4. The injury KSM has inflicted is a war crime, and not a domestic criminal matter.
1-3 are unverifiable predictions, sub-points to the main point, 4, which is the motive force behind the considerable agitation behind Attorney General, Eric Holder’s decision. Those who oppose a civilian trial for KSM want vengeance more than they want justice. This is exactly what Michael Goodwin has argued:
“Either try the detainees in military courts on secure bases or, best of all, give them death now. Mohammed and some others already acknowledged guilt and said they were ready to die.
I say we take yes for an answer.”
Well, there we have it. Goodwin wants vengeance primarily, and justice only incidentally. Now, vengeance and justice are not unrelated. Vengeance presumes the existence of guilt, so the pursuit of vengeance can lead to justice. Indeed, in an anarchic, godless world of all against all, vengeance is the closest thing there is to justice. To speak of justice would be a categorical mistake because without the apparatus of sovereignty and law, it is a standard that stands on stilts. We say “Justice under the Law” because without law, justice is a meaningless concept.
Goodwin and others like Mayor Rudy Giuliani who want to deny KSM a civilian trial believe, though they have not fully articulated their reasons, that the international milieu exists as a state of nature in which there is no universal law and no universally accepted sovereign law-giver, and therefore, the pursuit of justice is folly and the pursuit of vengeance necessary. If there is neither legality nor illegality, then there is only strength and weakness. Vengeance will have to do. This is why Rudy Giuliani insists on the frame that we are a nation at war, that we are dealing with terrorists or “enemy combatants” and not what John Yoo called “garden-variety criminals.”
To be sure, in a government of laws such as in a liberal democracy, justice takes on higher attributes that vengeance does not (and cannot). While justice is about law; vengeance is about necessity because it privileges immediate judgment over the process that would deliver such a judgment. While vengeance gives specific solace to those who were injured, justice assures all citizens that the system in which they conduct themselves works, – i.e., while vengeance is pointed, justice is blind, and while vengeance is preponderant, justice is proportionate.
Well and good. But as we consider whether or not KSM should have been granted a civilian trial, we need to determine the context in which we make this judgment: is terrorism a domestic criminal matter or an act of war? If the context is the former, then the Constitution takes precedence and it makes sense to speak of justice and that is what KSM deserves. If it is the latter, then because there is neither universal law nor a sovereign law-giver in the international milieu, KSM will have to suffer our vengeance because justice is not an alternative.
We have not settled on an answer to this question of whether or not terrorism is a criminal or a war crime because our historical definition of war has not caught up with its modern incarnation in which deterritorialized non-state actors perpetrate acts of violence. Our discussion over what KSM deserves is a footnote to this larger debate.