Military Justice is to Justice as Military Music is to Music.
November 25, 2001 11:44 AM   Subscribe

Military Justice is to Justice as Military Music is to Music. Alan Dershowitz in The Village Voice: "A long-term resident of the United States who President Bush believes may have aided a terrorist can now be tried in secret by a military commission and be sentenced to death on the basis of hearsay and rumor with no appeal to any civilian court, even the Supreme Court."
posted by adrober (28 comments total)
Isn't the whole point of a death sentance to deter people? If the sentance is conducted in secret, how can it be an effective deterant?
posted by delmoi at 12:07 PM on November 25, 2001

Now wait a moment: if my tenuous grasp of the law is correct, then this "military order" that Bush signed can't even be challenged in a federal court, because a) it's not legislation and b) it's under the purview of the military, and thus a self-fulfilling "you can only challenge it under the military legal system, but you're not allowed to challenge it under the military legal system". Can someone with a more thorough knowledge of the law tell me if this a correct assessment?
posted by solistrato at 12:09 PM on November 25, 2001

Isn't the whole point of a death sentence to deter people?

No. If deterrence were the point of the death penalty, we'd have abandoned it long ago; it's deterrent effect is negligible (probably). The point of the death penalty is justice, not deterrence.

What that implies for military justice, I don't know. (Read: Please don't let my comment derail us into discussing the death penalty itself. The issue presented in the link is far more interesting).
posted by gd779 at 12:24 PM on November 25, 2001

Isn't the whole point of a death sentance to deter people?

posted by mw at 12:24 PM on November 25, 2001

Yeah, Dershowitz should be proud of himself. He was part of the team that acquitted OJ. He has really earned his chance to ridicule President Bush and lecture the public on justice. Now I understand that that Dershy wants to defend Usama! I guess he hopes to add bin Laden to his list of guilty but acquitted defendants. All in the name of justice.
posted by Oxydude at 12:33 PM on November 25, 2001

The point of a death sentence is so that people who can't conceive of a more civilized and humane society can feel a fleeting sense of satisfaction.
posted by mmarcos at 12:35 PM on November 25, 2001

wow, Oxydude's is the worst flame I've ever seen on Metafilter.

I really hope the institutions that have reasonably successfully pursued the democratic ideals for over 200 years will derail - if not practically, then morally - these power trips by Shrub and co. It's been very unsettling to see my civil liberties go down the drain in the past 2 months.
posted by azazello at 12:50 PM on November 25, 2001

Oxydude: Yeah, Dershowitz should be proud of himself. He was part of the team that acquitted OJ.

And your point in mentioning this, besides an ad hominem attack? Yeah, so he got OJ acquitted- and you happen to know, with your incredible God-Man omniscience, that OJ was with an absolute certainty guilty of all crimes he was charged with? No, of course you don't- like most of us, you suspect OJ was probably guilty as hell, but none of us can ever know for sure. However, as Dershowitz points out in this very linked article- and you apparently glossed over, like he says folks are willing to do so easily- there is a critical Constitutional belief that letting the occasional guilty person go free because you follow a fair judicial process is the wholly worthwhile price for not locking up innocent people. OJ had a trial with a prosecution, defense, judge, and jury. They let him walk- deal with it, dude, that was years ago. Who knows? Some day you might find yourself falsely accused of a crime you didn't commit, and I'll bet dollars to ducats that if you had the cash you'd be on the phone to Dershowitz and Cochran faster than you can say "Civil Liberties".

And besides, that L.A. jury- being residents of that area, a jury of his peers- knew something you or I weren't really aware of at the time: that the LAPD was and greatly remains a horribly corrupt police department, one in which a racist white cop planting evidence to frame an innocent suspect wasn't only plausible, it seemed even probable- and as it turned out did in fact happen numerous times with less glamorous suspects. Perhaps the "not guilty" verdict was their way of protesting what they felt was a corrupt PD, a corrupt system. Perhaps, knowing what they knew about their community, that OJ's seemingly wild-eyed conspiracy defense was all-too-believable to them even if it wasn't to us watching at home.
posted by hincandenza at 1:00 PM on November 25, 2001

The point of the death penalty is justice, not deterrence.

Wasn't it Shakespeare who wrote 'Revenge is a kind of wild justice?' When I think of Illinois' halting executions because of the high percentage of false convictions, justice doesn't seem the right word.
posted by y2karl at 1:22 PM on November 25, 2001

Aside from the fact that it was not the lawyer(s) but the jury that got OJ off, the article fudges a bit. The examploe used is of a "long-time resident" --was he a citizen? Was he here legally? I am not arguing the main position taken--I dislike the idea of military courts--but would, say, Tim McVeigh be tried by a military court. No. He is (was) a citizen...and somehow the jury managed to try, convict and see that he got the death penalty.
posted by Postroad at 1:44 PM on November 25, 2001

Pardon the following long quote but here is an synopsis of Rene Girard's Violence and The Sacred:

That is the interest of Rene Girard's anthropological hypothesis of cultural origins in sacrificial violence as we find it in Violence and the Sacred. This work has the further interest for our purposes of beginning with some essential distinctions between our judicial system, whose retributive justice seeks only to punish the guilty, the villain, deemed the unique origin of violence, and ritual sacrifice, whose relation to the origin of violence is more indirect, remote, and ultimately mysterious to the community.
The focus of sacrifice is not villainy but divinity. Its violence is not reparative but prophylactic, preventive, as it deflects toward an arbitrarily chosen victim a violence in which all participate and whose purpose is not vengeful but somehow or other propitiatory.

We expect the law to distinguish archly and essentially between victim and villain, which judges the latter for preying on, in fact, for producing, the former, whom it avenges with a consensual finality that is beyond any fear of further spirals of vengeance. In sacrifice, any one is liable to immolation, even an animal substitute for a human, provided only that the victim's death not be likely to generate reprisals, to inspire further revenge. In fact animal substitution is warranted and sanctioned, however unconsciously, by the fact that the sacrificial victim is always in any event a substitute for anyone in the community, indeed for the community as whole, though the efficacy of sacrifice depends, as we shall see, on misrecognizing that identity, on misconstruing the logic of that substitution. Sacrifice does not seek to avenge a wrong done to anyone within the community, but to propitiate a divinity presiding over the community from outside it as its founder and guarantor. Understanding the foundational role of the sacred in human communities is essential to understanding its mystified return in modern civil society, which, contrary to traditional societies, nonetheless aspires to be its own foundation under the tutelage of man-made laws. It is when the community gives at least tacit assent to their violation that we see the continuity with sacrifice.

When the law punishes unjustly, it stands condemned (if not sentenced) in turn, and when it punishes only to appease the community, we readily describe its victim(s) as scapegoat(s) for more widespread evils, for less punctually detectable ills. In short, scapegoating, seeking surrogate victims, is all too obviously and in every sense against the law. That is the axial distinction we make between persecution and prosecution, though the fact of their common etymology (per/pro sequor) suggests that the law is heir to sacrifice, that the unanimity it appeals to bear residues of religious adhesion, as in the ancient Roman formulation, vox populi. vox dei.

I would argue that the death penalty, as practiced, is just that: human sacrifice. And if, Susan Jacoby, who wrote Wild Justice, is right, then the painful progress we have made from blood guilt and vengeance killings to the present system represents civilzed evolution, this ought to be considered. But since sacrifice belongs to the irrational rather than rational part of human nature, it won't.

I believe that crime and punishment, law and order are social constructions, received opinions and so distorted by years of appealing to the least conscious and most malicious impulses in us, by the Right especially, when simple overt racism became socially and politically unacceptable after the civil rights era that I would be ready to turn it all over to a central computing authority like in certain of John Varley's novels. Except who would do the programming?

If there is any topic where we could use an AI, this is it, because here is where we display the not the better angels but the worst demons of our nature...
posted by y2karl at 1:55 PM on November 25, 2001

That was from the first 'justice' highlighted in my first post in this thread and less than half of what you can read about Violence and The Sacred if you scroll down a ways.
posted by y2karl at 2:09 PM on November 25, 2001

wow, Oxydude's is the worst flame I've ever seen on Metafilter.

You obviously haven't been here very long.
posted by dogmatic at 2:15 PM on November 25, 2001

Groucho Marx said "Military justice is to justice what military music is to music;" he also opined that "Military intelligence is a contradiction in terms."
posted by Carol Anne at 2:19 PM on November 25, 2001

Wow, Carol Anne, when you said you were a red diaper baby, I had no idea of the Marxism involved.
posted by y2karl at 2:25 PM on November 25, 2001

dogmatic: Actually, longer than you (judging by the user #).

It's just that I see a blatant, insulting conjecture / coercion of facts in Oxydude's post. He goes from noting that Dershowitz was OJ's lawyer to suggesting that Dershowitz might defend Bin Laden in court because Dershowitz pointed out that a resident of the US is being tried in an unconstitutional, totalitarian manner. This is pretty inflammatory to me because in my view by this statement he (indirectly) acquits the government of whatever crimes they may be committing by conducting such a trial, by writing off Dershowitz's opinion in this manner.

Well, I guess this might not be such a flame to other readers, and I might have heard more disturbing things on MF. I'm a little jumpy on this because of all the recent totalitarian crap being pulled off by the governent.
posted by azazello at 2:32 PM on November 25, 2001

y2karl: I raise a flag to Leonard "Chico" Marx & Adolph (Arthur) "Harpo" Marx & Julius Henry "Groucho" Marx & Milton "Gummo" Marx & Herbert "Zeppo" Marx. As for Karl "Revolution" Marx, the man just had no sense of humor!
posted by Carol Anne at 2:34 PM on November 25, 2001

Adolph (Arthur) "Harpo" Marx

You and Jonathan...
posted by y2karl at 3:08 PM on November 25, 2001

Dershowitz : you could despise his clients and accept the fact that he is a very brainy Constitutional Attorney. Forget The Juice, it's over.
If it comes to a trial for Bin-Bin (it won't), you better hope he calls Dershowitz rather than Jerry Spence, a guy who does'nt lose and has consistantly kicked Uncles ass (Imelda Marcos, Ruby Ridge).
The military tribunal thing feels wrong...Sounds quite unnecessary and is evidence of errosion of our values. I would think both the left and right would be against it. And the Death Penalty is not the ultimate punishment: that would be life in prison watching CNN 24/7/365.Also, no punishment (prison, death, life) has ever proven value as deterence, otherwise by now there would be no reason for prison or execution.
posted by Mack Twain at 4:43 PM on November 25, 2001

Hoping to get somewhat on track after the death penalty near-derailment...

The point of the article is that military tribunals for accused terrorists a) undermine the entire notion of civilized justice, dating back to merry old English law, and b) are totally unnecessary, as we have a fine federal court system that has demonstrated its ability to corral our "freedom fighters" gone astray.

The legal system is built on the notion that regardless of the crime you committed or the person you are, you will get a fair trial. Yes, yes, I know, things aren't ideal, and there's lots of room for corruption, but would you prefer angry mob justice? If it had been up to the media and the country's late-night talk show hosts, dear O.J. would have been strung up in a heartbeat. The appeals, the deliberations, the motions, all that is built-in to make sure, to be absolutely positive, that the criminal punishments are deserved and appropriate.

Now, with one order, all that's gone. Let's say you're a Pakistani compsci student at MIT here on a visa. Let's say that you're a devout Muslim. Let's say that on your personal computer you have a few bookmarks linking to sites that may be sympathetic to al-Queda, or at least the plight of impoverished Muslims. Hey, maybe you've got a link to a site that's pro-Palestinian. And let's say that after Sept. 11, you made a crack like that UM technician, some sarcastic remark that's not entirely appropriate. Or even if you discussed the situation with some naive coed from Illinois who's in your elementary circuit design class and who really got wide-eyed when you mentioned that you knew people like bin Laden.

In this "New America," that right there is enough to warrant prosecution under a military tribunal. Ethnicity, religion, sympathy to the "enemy", and hearsay are, according to the terms of Bush's decree, enough to incarcerate you indefinitely. Allah forbid they find out that your second cousin, who you haven't spoken to in years, went off to fight with the Taliban.

This is thoughtcrime in the strict Orwellian sense. You are detained not by any criminal act you have committed - because you haven't committed any - but because of what you potentially might do, because of the contents of your head.

"Oh, I don't have to worry - I'm an upper-class white computer nerd with conservative opinions!" But under the scope of the new rules, any tenuous link to any criminal activity can be twisted to make your life hell. Your browser cache shows you visited 2600? You could be plotting a major cybercrime against the Pentagon. Paranoid? Of course it is, but these are the rules that are being laid down now. We've been hearing the stories about the kid who was banned from a flight because of the book he was reading, the physicist who was thrown off a plane because he was "acting weirdly," the dragnet of detained Arabs "just in case." These are patterns which the FBI and CIA are now authorized to look for, regardless of merit, because they'd rather throw you in jail and ruin your life than take a chance, however infintesimal, that you're the next Mohammed Atta. Because paranoid minds will find any sort of conspiracy, any plot to fit the facts, and the victims of this rampage get no compensation. In fact, they're supposed to be glad that they're merely being thrown out of the country for the simple crime of being Muslim.

The law is supposed to protect people from "unlawful search and seizure," so the government can't make your life hell unless you've committed a crime. And in our post-Sept. 11 world, that's quickly being kicked to the curb.

Oh, and Azazello: that's a troll, not a flame.
posted by solistrato at 5:40 PM on November 25, 2001


I wonder what the difference is. As far as I know a flame is a statement that reflects the real views of the poster and at the same time presents them in a way that unnecessarily irritates the [potential] opponent, while a troll doesn't even reflect the poster's opinion and is possibly blatantly false. I could classify Oxydude's post as either.
posted by azazello at 5:57 PM on November 25, 2001

A troll is a comment solely to provoke a response.
posted by davidgentle at 6:47 PM on November 25, 2001

A flame is any impassioned invective aimed at a specific person or people; a troll is any message posted with the intention of getting someone to flame you.

Oxydude's post may have been a troll. It's not a flame.
posted by nicwolff at 7:07 PM on November 25, 2001

While Dershowitz is techincally correct when he says "no appeal" to any cvilian court, I suspect he is intentionally obfuscating the fact that there might be recourse to civilian courts. While I do not generally practice criminal law, if I were representing a foreign national residing in the United States, I would immediately file in federal court for an injunction against the President and the military branch in question to stop the military tribunal, citing as many Constitutional bases as I could get my hands on. It might not win, but it would serve at least two purposes:

1. slow down the swiftly-gridning wheels of military "justice," and

2. give my client a chance to tell his side of the story in a public forum.

I wonder if the omnipresence of the putative respondent in such an action - i.e. the United States government - would allow me to have my pick of U.S. District courts. Worst case scenario, they have to file a motion to change venue - adding at least another week.
posted by mikewas at 7:50 PM on November 25, 2001

nicwolff, my posting was triggered solely by my opinion of Dershowitz. He talks about his noble deeds in defending the accused. I am sure that in his own mind he is Atticus Finch. But the way I see him, he is a paid gunslinger, available to the highest bidder. And it seems that most of his cases that make the news have the evidence stacked against them (why else would they need dershy?) So with all of my predjudices against dershy, when I read his article in the morning paper, it riled me. Why should this man lecture the country on justice? I just wanted to set the record straight silence would have endorsed your post.
posted by Oxydude at 8:13 PM on November 25, 2001

Leahy, Hatch Seek Ashcroft Testimony on Civil Liberties: "I think the attorney general owes the country -- certainly owes the Congress -- an explanation," [Senator] Leahy said on NBC's "Meet the Press." Ashcroft will appear before the [Senate] committee in early December, Leahy said.

William Safire, NY Times: "Kangaroo Courts: The U.C.M.J. demands a public trial, proof beyond reasonable doubt, an accused's voice in the selection of juries and right to choose counsel, unanimity in death sentencing and above all appellate review by civilians confirmed by the Senate. Not one of those fundamental rights can be found in Bush's military order setting up kangaroo courts for people he designates before "trial" to be terrorists."
posted by Carol Anne at 5:26 AM on November 26, 2001

Had Dershowitz not been speculating in the news-weeklies about what kinds of torture might be acceptable in the context of the Current Situation, it would be easier not to regard his views on Bush's nasty little tribunals as sheer lawyerly expediency.
posted by holgate at 6:02 AM on November 26, 2001

Another Scheer distortion: Dan Kennedy of the Boston Phoenix takes on Robert Scheer's misleading assertions about Alan Dershowitz's opinions.

Dershowitz has made it plain that he does not favor torture. As he explained to Newsweek’s Jonathan Alter several weeks ago, "I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval."
posted by Carol Anne at 11:25 AM on November 27, 2001

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