Not The Night Of The Long Knives

The NYT asked Charles Fried, Jack Balkin, and Dahlia Lithwick “how the incoming administration should deal with the legal legacy of the war on terrorism”, or, more briefly, whether people who authorized torture, rendition, illegal surveillance, and so forth should be put on trial. As I’ve said before, I think they should. As Dahlia Lithwick says:

“The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law.”

This means, of course, that I disagree with Charles Fried*, who writes:

“There are those who will press for criminal prosecutions, but this should be resisted.

It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.

In contrast, by turning away from show trials and from the persecution of even the worst of their past regimes’ miscreants, new democracies like Spain and South Africa showed that they had moved decisively beyond a politics of hate and revenge. To South Africa and its Truth and Reconciliation Commission compare the barbarism and desolation of Robert Mugabe’s Zimbabwe.

Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice.”

Question: does Charles Fried think that all criminal trials are like the Night of the Long Knives or the Stalinist purges? Did he think this while he was Solicitor General? Does he think that in our effort to move beyond the barbarism of Mugabe’s Zimbabwe, we should stop trying thieves and rapists, and punish murderers without giving way to the ‘hate and revenge’ of the criminal justice system? Or is it only politicians whose trials cannot be distinguished from the ‘humiliation, exile and murder’ of the vanquished?

Fried goes on to concede that “ours would not be Stalin-type show trials, but they would have a kind of absurdity distinctive to our own over-lawyered culture.” They would have all sorts of procedural intricacies, which he details at some length. Personally, I think that all these things — subpoenas, depositions, discovery, motions for this and that — are among the things that distinguish a decent system of justice from the purges and barbarism Fried mentions. If they are too annoying for politicians to put up with, or too ludicrous to be useful, then we should change them across the board. If not — if they serve some useful purpose — then simply listing them in a way that makes them sound pettifogging and ridiculous is wrong.

Fried also tries to distinguish Cheney et al from ordinary criminals:

“But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (…)

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.”

I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I think that the shoplifter should not be punished for his crime.

More to the point, it is possible to commit crimes for comprehensible purposes. Women sometimes kill husbands who beat them, seeing no other way out. People steal to buy their children food or medicine. The fact that in so doing they show an “insufficient sense of moral restraint” is not relevant to the question whether they committed murder or theft.

If Bush and Cheney’s motives are in fact an excuse under criminal statutes, then they should get off (and, I would add, the statutes should be changed.) If not, I do not see why invoking their motives is relevant here. This is especially true since I would think that any government official who decided to violate the laws against torture would do so not to line her own pockets — torture is not normally lucrative — but because she thought there was a good reason to do so. If we want to make torture by government officials legal, we should just go ahead and change the law. We should not pretend that it is illegal while excusing any torture performed for motives that any government officials who licenses torture will probably share.

* Full disclosure: I have known Charles Fried all my life. One of the things I have always liked about him is that he has always been up for a good argument, even back when I was an obstreperous eight year old. I trust he wouldn’t want me to stop now. 😉

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