Producing Dead Bodies: A Remaining Realm of American Excellence

I took the subtitle of this post from Glenn Greenwald’s October 22 post at Salon.com. Greenwald is at his best here. Everyone in the country ought to read this article and reflect on it.

On May 1, President Obama announced the end of Osama bin Laden’s life. That evening I talked with my son on the phone. He lives in Washington, DC, and mentioned the celebrations in his city that night. He noted the celebrations as troubling, and also noted in passing that many celebrants were students who had some alcohol to assist their energetic cheering in the streets. I took some heart from that, and I suppose from knowing that up here in Boston the response was more temperate.

Then came the Awlaki killing. That assassination represented a breakthrough in our constitutional history – not just a chip but a huge chunk removed from our Constitution. If the government will assassinate an American citizen without due process – a plain violation of the Fifth Amendment – what won’t it do? Which is worse: torture or summary execution? Don’t trouble yourself: both acts count as a crime. They are criminal acts not because the Constitution and international law specifically prohibit them. The Constitution and international law prohibit them because they are criminal acts.

The distinction matters. We may ask, how do we know something is a crime? Then we look at the wording of our laws to determine if a particular act counts. If legal language and precedent leave room for maneuver – they invariably do – you write a long memo to explain why the act you want to commit does not count as a crime. Such legalistic reasoning reverses the relationship between legal and moral thought. You can’t resolve ambiguity in the moral sphere with a legal memo. We do – and ought to – resolve legal ambiguity with moral reasoning. Moral reasoning tells us that civil – not savage – societies cannot permit torture and summary execution. Civil societies use legal frameworks to codify these moral conclusions.

I’ve written a lot about torture, so let’s concentrate on summary executions. To celebrate summary executions is beyond anything we could have imagined before 9/11. After 9/11, I argued that we would have to find new legal frameworks to govern the prosecution of this war. I did not like the idea that every time we captured someone suspected of waging war against us, we would haul the individual back to the United States and inaugurate the same legal process we undertake when an American citizen is charged with a crime. Yet we had little precedent to guide us. Strictures of international law reflect precedents and rules used to govern wars among states. International law had virtually nothing to say about war between a state and a loose network of combatants scattered around the globe. I said that we would have to work with our allies in Europe to fashion new rules for this kind of warfare.

It didn’t happen. We build Guantanamo, Bagram, and Abu Ghraib on our own. We instituted extraordinary rendition, indefinite detention, extra-judicial capture and punishment, enhanced interrogation techniques, exculpatory memos and executive orders, targeted assassinations, secret drone operations, warrantless surveillance, military tribunals, executive findings, and compliance positions for prisoners on our own. We decided that collaboration with our allies would unduly delay and hamper prosecution of the Global War on Terror. So we acted on our own.

As a result, new international rules to accommodate new forms of warfare did not evolve. As a result, we’re compelled to choose between apparently legal but plainly immoral procedures of our national security state, and cumbersome, long procedures embedded in our criminal law. No one cares to argue that we should infuse our domestic criminal courts with prisoners captured in Afghanistan, Pakistan, Yemen and elsewhere. The debate over Guantanamo shows we don’t want them here as prisoners, let alone as defendants in criminal trials. Yet we have no procedures to handle prisoners other than the ones we have seen develop since 9/11. We have not consulted with our allies, launched any proposals, or pursued any public initiatives to determine how to treat individuals captured in the current war.

This determination to develop our own procedures for prosecution of this war – unilaterally and secretively – affects our domestic legal environment, our political culture, and the sanctity of our own Constitution. Consider two instances of warfare, one in September 2001, the second ten years later in September 2011. An emotional, indignant reaction to bin Laden’s attack on 9/11 would have been, “You can’t do that!” Bin Laden replies, “Of course I can. Look, I just did.” That’s your enemy taunting you. An American citizen would rightly utter the same words after Awlaki’s killing in September 2011: “You can’t do that!” Obama responds likewise: “Of course I can. Look, I just did.” In the latter case, the speaker isn’t your enemy taunting you, it’s your own president! Your own president claims he can do whatever he wants.

This presidential claim of authority to assassinate an American citizen isn’t only a general statement of powers the president says he needs to prosecute this kind of war successfully. This claim extends to every American citizen individually: to you, and you, and you. The claim says, “If we the authorities determine that you endanger the state’s survival, we will kill you. If you speak against us, if you advocate the state’s destruction, we will kill you. You have no right to counsel, you have no right to hear the charges against you, nor have you the right to respond to our charges. We will kill you.”

The next time government produces a dead body and expects you to cheer about it, think about that.

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