The Indigestible

Hmm. Okay, in Friday’s Bleat, James Lileks com­ments (screed­i­fies?) on a few memes float­ing around that rub him the wrong way. He begins thus:

As I said on the Hewitt show tonight, I feel as if Bizarro World is slowly leak­ing into ours, and one day we will see Superman and note he has that ugly grey faceted skin, and won­der when that hap­pened. Well, we just didn’t pay atten­tion to the signs. In Bizarro World, ille­gal for­eign com­bat­ants are granted con­sti­tu­tional rights; in Bizarro World, peo­ple react to high gas prices and energy short­falls by refus­ing to boost domes­tic capac­ity. You have John McCain nix­ing ANWAR drilling and lend­ing his sonorous monot­one to cap-​​and-​​trade; you have Obama not­ing that gas prices rose too quickly, which pre­sum­ably means he would have favored a grad­ual rise to ninety-​​buck-​​a-​​tank fill-​​ups; you have Speaker Pelosi vamp­ing on the pop­u­lar memes […]

A’ight, well, here’s a mod­er­ate liberal’s reply to the open­ing salvo.

For starters, ille­gal for­eign com­bat­ants haven’t nec­es­sar­ily been granted any­thing. Accused or alleged ille­gal for­eign com­bat­ants, how­ever, have been extended the same priv­i­leges under US law that cit­i­zens of the US are sup­posed to have. To my mind, this makes sense; if we can’t obey our own judi­cial cus­toms in pros­e­cut­ing those who may be clearly guilty — if we can’t adhere to the guide­lines of jurispru­dence in pros­e­cut­ing even the most rabid anti-​​US fanatic, if we have to essen­tially cir­cum­vent the prod­uct of decades of care­ful criminal-​​case prece­dent in order to obtain a con­vic­tion, it seems to me that our cred­i­bil­ity will be sig­nif­i­cantly compromised.

That is, if we have to play a rigged game to ensure a given out­come with some­one who is clearly guilty, any other pros­e­cu­tion we per­form will imme­di­ately — and prob­a­bly jus­ti­fi­ably — be called into ques­tion. The rea­son we have strin­gent rules for pros­e­cu­tion, the rea­son we vet evi­dence, the rea­son we don’t accept tes­ti­mony obtained under duress is that when we do, we don’t actu­ally enhance the sta­tus of our cases against any­one else whose guilt or inno­cence is less certain.

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Remember 2003? Remember when Khalid Sheikh Mohammed was captured?

He’s the guy who appar­ently mas­ter­minded the hijack-​​crash attacks that took place on you-​​know-​​what date in 2001. He’s due to go on trial (with oth­ers) at Guantanamo soon.

Well, actu­ally, it’s not going to be a trial — it’s going to be a tri­bunal. And that’s only one prob­lem with it. Evidence to be used against him will include both hearsay claims, and con­fes­sions obtained under tor­ture. (This accord­ing to CNN.)

Tribunals are actu­ally not civil tri­als as we think we under­stand them in the US, and the Guantanamo approach has already been ruled uncon­sti­tu­tional by activist duty-​​doing Supreme Court judges in 2006. In a mil­i­tary tri­bunal there is no jury, and in the Guantanamo setup there may not even be full dis­clo­sure of evi­dence, mean­ing the defense might be caught flat­footed.¹

Complicating things is Mohammmed’s own state­ment that he wants to be killed, so he can be a “mar­tyr” to his per­verse cause.

On the one hand, I’m in favor of pun­ish­ing the guilty; how­ever, our national high ground has so steadily eroded in the last six years of Bush’s stu­pid­ity that we’re actu­ally using lev­ees to hold back the sea. And we know how well that strat­egy works.

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