"making bad history:" law, ideology, and the 9/11 trials

I've been pretty out of it this semester with the new job and trying to adjust to Chicago, etc. I'm only skimming news occasionally, much less getting a sense of the positions being taken on various issues. The trials for 9/11 planners, for instance, seem like an absurd bit of political theatre, meant to consecrate the law as objective and the US as a just society. It is a welcome change from people who shirk the law and try to re-write it by executive edict; but on the other hand, it is one of those things where the rule is only proven by exceptions. In other words, it is unlikely that this is a whole lot different than a show trial by military tribunal, yet it is perceived as such. The perception that there could be a chance of acquittal is seen by some as a downfall of this process; but the assertion that justice will be served is supposed to give assurance that, as in the trial of Saddam Hussein, there will be a hanging at the end of the process.

I am too foggy to reflect on much of the details here, but I was struck by one exchange in the Senate questioning of AG Eric Holder about this trial. In skimming through today's version of the Neo-Con Patriot Post, I came across this passage:

"Can you give me a case in United States history," Sen. Lindsey Graham (R-SC) asked of Attorney General Eric Holder this week, "where an enemy combatant caught on a battlefield was tried in civilian court?" Holder, the chief surrender-facilitator, was outlining to Congress the administration's latest ploy to appease its über-Left base, namely, moving Khalid Sheikh Mohammed (KSM) -- the self-proclaimed mastermind of 9/11 -- and four other al-Qa'ida 9/11 planners from Guantanamo to New York to be tried like ordinary civilians in a Manhattan federal court. When Holder hemmed and hawed ("I don't know. I'd have to look at that. I think that, you know, the determination I've made..."), Graham shot back, "We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no."

I can't really comment on the history of wartime trials--though I imagine that the courts in the Hague and Nuremberg would be similar presidents--but I'm really struck by the way that Graham is able to render the facts of the case using the ideology of the war on terror as completely unproblematic. It is a classic example of how ideology can tweak facts in a certain direction--and be so unquestionable that the leading lawyer in the country is unable to muster a response. The facts are the following: during the time that we were at war in Afghanistan and Iraq, these five people were all caught in Pakistan.

• Khalid Sheikh Mohammed - initially killed, then caught by the Pakistani ISI on March 1, 2003 in Rawalpindi, Pakistan
• Ramzi Binalshibh - on FBI most wanted terrorist list since 2002; caught by the Pakistani ISI (conveniently) on September 11, 2002 in Karachi, the same day that KSM was supposedly killed in Karachi, Pakistan ostensibly on intelligence procured by the torture of Abu Zubaida, though video tape the evidence of this interrogation was one of those destroyed by the CIA.
• Mustafa Al Hawsawi - Also captured on March 1, 2003, in Rawalpindi, Pakistan.
• Ammar al-Baluchi and Walid bin 'Attash - both captured in Karachi, Pakistan, in April, 2003.

None of these men, in other words, were caught on a battlefield or in the process of fighting against our troops. None of them were caught in Iraq or Afghanistan. None of them were caught in either of the official wars with actual countries. All of them, in fact, were caught by police and intelligence forces sort of like, well, criminals. In other words, to call them enemy combatants, one would have to apply the label very loosely--unless of course, the war on terror has no borders. In this case, the unprecedented thing is not that war crimes are being tried in a civilian court, but that the definition of war has been so tediously stretched that it barely resembles what it was meant to signify. The field of the war has become so ubiquitous that it is all a game in performative language--a game which is meant to make it legitimate to torture, run secret prisons, and deny people on trial access to the charges or evidence against them. Calling them "enemy combatants" is a ridiculous holdover from a (more obviously) corrupt set of agents.

This is precisely what the Bush administration asserted when it applied the label of "enemy combatants" to these prisoners, upon their transfer from previously undisclosed CIA secret prisons. This label is basically an executive order, meant to justify their being detained, but to prevent them from being able to claim the protection of the Geneva Conventions since they weren't lawful combatants. In this case, among the other technicalities (i.e. they weren't wearing uniforms) they weren't lawful combatants because they weren't actually engaged in a war, at least not in the classical sense. In fact, they were basically just criminal terrorists, who had, up until the Bush administrations, been dealt with through law enforcement channels such as police, FBI, courts, etc. Timothy McVeigh, the Lockerbie Pan Am bomber, and the people responsible for the bombings in Kenya and Tanzania were all dealt with as criminals through the so-called justice system (I bracket for a moment how or if this really worked and focus merely on the formal facts).

In other words, the current administration is not the one changing history; this trial only appears as a revision of the process because it had been so thoroughly perverted under the previous administration. What is amazing is that this isn't the response of Holder to this line of questioning. Why not say, "well no, we've never tried an Enemy Combatant in a US court, but then that definition was basically a fabrication of the previous administration so we're not dealing with a long period of time." Better yet, why not point out that, as of last March, the US government no longer honors this designation, something which Holder himself said at the time:

The Obama administration stopped calling Guantanamo inmates "enemy combatants" on Friday and incorporated international law as its basis for holding the prisoners while it works to close the facility.

The U.S. Justice Department filed court papers outlining a further legal and linguistic shift from the anti-terrorism policies of Republican President George W. Bush, which drew worldwide condemnation as violations of human rights and international law.

"As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law," U.S. Attorney General Eric Holder said in a statement.

Holder had, himself, played a part in redefining these prisoners as, well criminals. It baffles the mind that this wouldn't be his response. Yet he basically affirms not only the dispute Graham raises about the historical precedent but the idea that this is an attempt to, in Graham's words, "criminalize the war."

"We're making bad history here," Graham said. "The big problem I have is that you're criminalizing the war. ... I think you've made a fundamental mistake here."

Testifying for the first time on the decision, Holder delivered a point-by-point rebuttal to his critics who say he's treating the suspects with a "pre-9/11 mentality."

"I know that we are at war," Holder declared.

In other words, unlike the previous administration, which did everything in its power to construct an alternative reality, this one basically cowers in the face of that reality, acts as if the alteration didn't occur and we can simply pick up from where we were before it set about redefining what was legal and what laws applied to what. In the present case, this is pragmatically difficult since the evidence in many of these cases was obtained through questionable methods--perhaps the underlying fear many of the people involved in trying to bring this case to justice (or trying to prevent it from being brought to justice.) But if that is the case, the error isn't with the present administration for trying to bring it to trial but with the previous one for utterly failing to have any long term plan for how these people would be tried or punished. It seems as if their only plan was to leave them rotting in a dungeon in Cuba till they died, in a state of perpetual legal and political limbo--the ultimate state of exception. If they had thought about this in any length of time, they would have known they need to come up with an alternative plan--or a plan at all. Even using their perverted logic of denying them Geneva Conventions to begin with (so that they could torture them, etc.) ,after a person has been in custody for a certain length of time, they aren't going to yield much in the way of useful information: were they just supposed to sit there indefinitely with no one asking any questions? Just logistically, it is screwy. What was the plan? The fact that the current administration is going to have to go through all sorts of contortions to make this appear legal and just is not their fault or the fault of their choice of venue: it is because the previous administration had so little regard for not only the law, but the future administrations' burden of dealing with their mess. No one can dispute that the history being made is bad; it is just that this process began several years before.

What conservatives seem to be less interested in is the fact that the law isn't the law just because you say it is: people don't just listen to the law and obey because they respect authority as a source of power and repression. They listen to the law because, on some level, they believe it represents some higher process of legitimation. In the case of US law, this is because it supposedly guarantees due process. I agree that this is a bit of political theatre, but it is being done to reinstitute the belief in the law--a reasonable move for a lawyer president to do. The ideological process involved in this is a topic for another day, but needless to say their fetish of authority evidently only extends to certain people: now that there is a new president, it is evidently not important that they observe him with respect--or that they find it important that he try to establish his authority on the basis of law and justice rather than some crusty trust in old white men.