A Weighted Random Process

A very disturbing narrative is being spun by several commentators on the right. In the aftermath of the failed Christmas day airplane bombing, several politicians and pundits have criticized the Obama administration for using the criminal justice to legally detain and try the attempted bomber, instead of holding him as an “enemy combatant”. You may remember that President Bush invented the notion of an enemy combatant on order to indefinitely detain individuals who had been captured in Afghanistan and Iraq and were suspected of being terrorists. The supreme court ruled that this indefinite detention without trial or tribunal violated the criminal trial rights provided in the constitution. And yet, these commentators make the argument that by using the criminal justice system in this way, Obama and the justice department are somehow putting America at risk, failing to extract critical information from this dangerous terrorist.

First, it should be noted that this is a blatantly hypocritical attempt to make political hay out of a near tragedy. When the shoe bomber similarly failed to detonate an explosive on an aircraft in the Bush years, he was tried in the criminal justice system and not labeled an enemy combatant. These commentators, including the former Vice-President, supported that decision then, and they ate only objecting now to try to convince Americans that Obama is somehow endangering America.

However, it is significantly more important to remember why the Bush era policy is so dangerous. On our constitutional republic, we operate under the principle that our executive must be subservient to the constitution, and that no national crisis gives the executive the power to ignore the provisions enumerated therein. It is exactly in times of crisis that these provisions are so important, as the supreme court held in the famous case of Ex parte milligan. Lincoln overstepped his authority by suspending the writ of habeas corpus during the civil war, which was perhaps the greatest nation crisis our country has ever faced. The limitation on the power of the executive to indefinitely detain people is of utmost importance because the police power of the executive is so easily abused, and there is so much injustice committed when someone is incorrecy deprived of their liberty and separated from their family.

Perhaps those who believe that the civil rights of a terrorist are unimportant should remember what it is that we are defending. After the Boston masacre, the people of Massachusetts were outraged, and they demanded that the British soldiers involved be executed. However, John Adams, at great peril to his reputation, took on the task of defending these soldiers. He did this because he believed that in a society of laws, justice cannot be served unless the laws are applied equally to everyone. This means that anyone who is accused of a crime, no matter how guilty they may appear, is entitled to the same legal protections. This is necessary because justice does not know in advance who is truly guilty. If our legal system is to have any legitimacy, it must never prejudge those who come before it. That is why John Adams presented the defense for those soldiers. If they had not had a proper defense, their trial would have been merely a stage show, and any punishment made against the would gave been just as injust as the killings that they themselves perpetrated. And once we become a nation of show trials, we will rapidly descend into a state where politics is practiced through the criminal justice system instead of in our democratic institutions.