Today’s post on ethics is written by Alonzo Fyfe of Atheist Ethicist. (Keep in mind that questions of applied ethics are complicated and I do not necessarily agree with Fyfe’s moral calculations.)
Al-Qaeda, working in close cooperation with the Congress of the United States, scored a significant victory on Monday in undermining some of the bedrock principles supporting liberty over tyranny both at home and abroad.
They have succeeded in replacing the idea of a right to trial by jury with one in which governments are free to engage in show trials. These show trials are trials in which governments are free to manufacture a verdict of their choosing using secret and manufactured evidence – some of it acquired by getting people to “testify” to whatever the government chooses, to avoid another round of torture.
On Monday, attorney general Holder gave up in plans to try the alleged 9/11 conspirators in Federal Court, subjecting them to Military Tribunals instead. It has substituted an option whereby a government must prove its case in favor of one that empowers the government to manufacture a verdict of its choosing.
(See Holder’s statment, Statement of the Attorney General on the Prosecution of the 9/11 Conspirators.)
Holder himself is against this move, but was forced into it by a Congress that passed legislation making a federal trial impossible. After announcing the decision to try the case in Federal Court:
Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.
I have no doubt that, under Holder, the 9/11 conspirators will get a trial that is as fair as possible. They are not seeking to manufacture a verdict of their choosing but, instead, aiming to show the world that they can prove their case beyond a reasonable doubt.
Yet, there is little doubt that much of the world will see it differently. They will use it as evidence that the US government, when it doesn’t have a strong case, will resort to “trials” using secret and manufactured evidence to get a verdict of its choosing.
While the Congress of the United States might not actually get a show trial, it has loudly announced to the world that it certainly endorses the principle of a show trial when civil courts risk not giving the verdict that political leaders want.
To see this, all people need to do is look at the reasons offered for using Military Tribunals over federal courts. The most commonly used reasons – “We fear that the Federal Court will not give us the verdict that we want. It might return a verdict of Not Guilty. For this reason, we insist on using a system that will more likely deliver the correct pre-determined verdict.”
This decision puts Americans at risk in a number of ways.
For one, Congress has abandoned its ability to protest any decision by a foreign government to subject Americans to similar types of show trials. If we should try to protest the “conviction” of an American citizen in such a trial, they can now point here and call us hypocrites – and be truthful in the accusation.
If we had gone ahead with a trial in Federal court we would have weakened every dictator and tyrant across the globe. We would have shown people around the world a choice whereby, in one type of society, governments must earn a verdict whereas, in another, governments are free to manufacture verdicts.
Most importantly, these types of cases undermine the idea that humans have certain inalienable rights and, instead, move what may be considered rights – such as the right to a trial by jury – into the category of privileges, which governments grant, and which governments may take away at will.
Of course, there are no “rights” in the form of intrinsic values that absolutely require or prohibit certain actions with no questions asked. There are, instead, malleable desires and aversions that we have the capacity to influence through social tools such as praise and condemnation.
However, desires and aversions do not allow for a great many exceptions. In order to allow show trials where governments may manufacture verdict of their choosing we must weaken or exterminate any aversion to show trials where governments can manufacture verdicts of their choosing. Weakening that aversion makes these types of acts easier to perform, and harder to generate opposition when they are used. This, in turn, puts all of us at risk of becoming victims of these practices.
In fact, if it is permissible for governments to use systems allowing for manufactured verdicts in these cases, what is to prevent those in power from using this system against their political opponents? Without a widespread social aversion to this practice, what protections do we have?
The Constitution will not protect us. We know full well that the Constitution says whatever the reader wants it to say. We already have proof that the Constitution will be seen to favor show trials with manufactured verdicts if this is what those in power want to find there.
In the absence of people who care, the Constitution has no voice.
- Alonzo Fyfe