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| Protesters lobby for the release of the Uyghurs from Guantanamo (Photo credit: Wikipedia) |
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Below, some related thoughts from my new book, published earlier this year:
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And, so, as this book
goes to press in the autumn of 2012, how well has the American criminal justice
system acquitted itself in the so-called War on Terror?
In the time span
surveyed by this tome (1993-2010), some bad guys (and, occasionally, girls)
have been convicted and incarcerated (or, rarely, executed). These include the perpetrators of the
first World Trade Center bombing 17 years ago; the Okalahoma City bombers, Tim
McVeigh and Terry Nichols; half a dozen of the most aggressive eco-terrorists
of the past decade; and the only defendant ever brought before the bench in the
second World Trade Center attack.
In my view, all these defendants were fairly tried and appropriately
punished.
However, just as my
Introduction recalls a ragtag record regarding the prosecution of alleged
terrorists in the late 19th and early 20th centuries --- the Molly Maguires and
Sacco/Vanzetti trials being glaring examples of justice miscarried in the
shadow of irrational fear by a co-opted and corrupted legal system --- so, too,
have we seen in the past few years a number of questionable cases. The sagas of Jose Padilla, Sami
Al-Arian, and the Fort Dix “terrorists” are all cases on point.
I don’t suggest that Padilla,
Al-Arian and the Jersey boys convicted of plotting to attack Fort Dix are
innocents. They are not. As, no doubt some, perhaps all, of the
convicted Molly Maguires had blood on their hands, Padilla, Al-Arian and the others also are guilty, at the
very least, of evil intentions toward America. What is disturbing, as with the Mollies, is the excessive
vitriol and vigor with which they have been prosecuted… if not, indeed,
persecuted. Their cases, in short,
smack of excess.
The same
complaint may be leveled at Trudy Rubin and her fellow plaintiffs, who, as this
is written, continue to press their case to acquire Persian antiquities in
university museums to satisfy their default judgment against Iran. Regardless of the outcome of the
technical issue of ownership, these treasures are public assets, which ought
not to be dispersed in order to satisfy private claims, no matter how meritorious
these might theoretically be.
Here, again, that the Rubin case has been permitted by the courts to
proceed reeks of excessive zeal.
“We are all no
better than God made us, and some of us are much worse.”[1] These words are as true today as when
they were penned by the 18th century British novelist Henry Fielding
some 260 years ago. We cannot hope
for perfect justice in our imperfect society. On the other hand, a similar, but distinctly different, observation
by Oscar Wilde is also worth quoting.
“We are all in the gutter, but some of us are looking at the stars.”[1]
As we mark the end
of the first decade of the new century and the tenth anniversary of 9/11, the
moment seems propitious for the kind of assessment I have offered here. This also is a particularly appropriate
point for a reaffirmation of oaths… by judges, by attorneys, by all public
officials charged with protecting and defending the American Constitution and
the rights inherent in its words.
A good working
definition of terrorism is “the threat or use of physical coercion, primarily
against noncombatants, especially civilians, to create fear in order to achieve
various political objectives.”[1] If an objective of radical Islamic
terrorism is to replace Western democracies with a global caliphate, and if its
method is to shape our behavior by instilling fear, then we play into
terrorist’s hands when we sacrifice civil liberties for the sake of an
over-zealous sense of security.
The more
severe the terrorist attack, the more draconian our response is likely to
be. “The Patriot Act of 2002
following the terrorism of 9/11 reduced personal freedom in the United
States. The Iraqi and Afghan wars
following 9/11 precipitated the longest and most costly war in American
history.”[1]
The ever-escalating contest between terrorists and security systems at
our airports is another prime example.
A terrorist unsuccessfully attempts to bring down a plane with exploding
shoes. We all now remove our shoes
before passing through security.
Another tries to detonate his underwear in flight. Full-body scanning becomes the device
du jour. What will be next?
In an
earlier book[1] I recounted an
incident at my own university in which the institution’s health and safety
manger proposed to bring in the first responders to deal with what she thought
were anthrax spores but proved, upon examination by the chair of our Chemistry
Department, to be powdered sugar from a birthday cake. Her initial, panicky reaction could be
excused by the event’s timing, hard on the heels of the October 2001 anthrax
letters received by two U.S. Senators, as well as others.
Unless one considers the
Fort Hood massacre (Chapter Nine) to be a terrorist attack, we can say that
there has been no successful assault on the American mainland since 9/11. Put it down to good policing, ala the
thwarted Fort Dix plot. Put it
down to preoccupying Al Qaeda and friends in Iraq and Afghanistan. Put it down to dumb luck. All three causes may very well have
played their roles in our good fortune.
Full-body scans may make sense at our airports. Severe sentences for Sami Al-Arian and
the ‘Jersey boys’ of Fort Dix may be justified by their potential to act again,
next time with better success, and as a deterrent to like-minded malcontents.
The appropriate balance
between liberty and security is a dynamic equation, like the calculus. Granting this reality is not to concede
the absence of any outer limit to which our system of law and justice must
never be permitted to swing. The in
communicado incarceration of Jose Padilla
approached that extremity; our courts pulled us back from the brink.[1] Repeated defeats by the Bush
administration before the Supreme Court regarding the proper legal procedures
to be used for the Guantanamo detainees were collectively another instance when
the swing toward the abyss of totalitarianism was halted and reversed.[1]
Still the abyss calls
out to us: “Here, and here alone, waits real security and absolute
safety.” Law enforcement officials
still respond to this siren song.
An example is a case in which I am peripherally involved. That it merited no national headlines
highlights a certain insensitivity toward such excesses at the close of a
decade of highly enhanced homeland security and continuous overseas warfare.
Jimmy Pizzinato, 81, was
a Korean War veteran who had suffered traumatic brain injury from
shrapnel. Despite post-traumatic
stress disorder, he had lived a reasonably normal life, earning a living and
raising a family. Recently
diagnosed with acute leukemia, he was visited by a hospice worker, who noted
the presence of firearms in Jimmy’s rural Tioga County, Pennsylvania,
home. This social worker contacted
the state police, who dispatched two uniformed officers to Jimmy’s door. When Jimmy answered, he had a pistol in
his hand. The officer departed and
called in a swat team.[1] The briefest of news stories reported
what happened after that:
Westfield, Pa. --- An elderly
man was fatally shot by police early Friday morning after he reportedly fired
shots at troopers who had surrounded his residence. James Pizzinato, 81, of
State Route 49, Westfield, was fatally wounded by police bullets early Friday
morning after he exited his residence with a firearm in hand, according to Pennsylvania
State Police. Upon exiting his
residence, Pizzinato fired an unknown number of shots at police, troopers
said. Troopers did not say how
many times Pizzinato was struck or how many officers returned fire.
According to state police, two troopers
went to Pizzinato’s residence around 2 p.m. Thursday to serve a mental health
warrant. When the troopers
arrived, Pizzinato allegedly waived a revolver at one of the troopers, then
holed up inside his residence, according to state police.[1]
That this incident
merited little more attention than the few lines quoted above, and that the
focus of the brief item is on the allegation that after “lengthy negotiations”[1]
Pizzinato came out of his home shooting, should be cause for our collective
concern. Why was no one asking
what the police were doing there in force in the first place? When the police decide to deal with a
mentally challenged, critically ill, and elderly disabled veteran in this
manner, isn’t the outcome a foregone conclusion? In the words of his godson, an Air Force doctor named
Lawrence Perin, “The officer[s] left and rather quickly a swat team of over 30
vehicles and snipers set up a blockade.
Home[s] nearby were evacuated.
The highway nearby was closed.
The phone lines were cut and his sisters and daughter were not able to
reach him. Near midnight, the swat
team broke into the rear of the house and Jimmy exited the front door, of
course, with a rifle. He was then
gunned down.”[1]
Another 2010
incident that should raise our civil-liberties antennae involves a U.S. citizen
of Somali background, accused during the 2010 holiday season of trying to
mimic, but more successfully, the Times Square bomber of Chapter ten. The Associated Press reported on
November 28, 2010:
PORTLAND, Oregon —
Federal agents stopped a Somali-born teenager from blowing up a van full of
explosives at a crowded Christmas tree lighting ceremony in Portland on Friday,
authorities said. Mohamed Osman Mohamud, 19, was arrested during a sting
operation at 5:40 p.m. just after he dialed a cell phone that he thought would
detonate the explosives but instead brought federal agents and Portland police
swooping down on him. Yelling
"Allahu Akbar!" — Arabic for "God is great!" — Mohamud
tried to kick agents and police as they closed in, according to prosecutors.
The bomb was a dud supplied by undercover agents as part of the sting and the
public was never in danger, prosecutors said.[1]
As with most sting
operations, the question lies out there to be posed by some defense attorney
down the road: Did law enforcement cross the line between a legitimate sting
and incitement? A website called Intelhub.com commented:
Notice as the corporate
media attempts to paint a picture of a psychotic Arab attacking America in the
name of Jihad. This is a 19 year old kid who literally was given fake
explosives and we are supposed to believe that without the FBI he could have
carried out a major attack?
FBI agents went
as far as to test a real explosive with the suspect in Oregon’s back country.
Why wouldn’t they just arrest him for planning a terror attack instead of
waiting for the fake attack that has scared American’s nationwide? According to
Fox News, the FBI was with Mohamud all the way through!
That’s right, the FBI literally made this terrorist. Notice how Fox News
pretends that the FBI is just so great, creating terrorism and then looking
good from stopping it![1]
Is this the America we
want? Is this the price we are
prepared to pay for homeland security?
Or in reading this story, should we feel that we are starring into the
abyss, and if so, ought we do find ourselves recoiling?
If your answer to this
last question, like mine, is an emphatic “yes,” then perhaps you now agree with
the opening posture I took in my Preface, i.e., that we need more, not fewer
lawyers in this American society in order to protect and defend our civil
liberties. I hope you also agree
with me that we must encourage our judges, when one or more of our allegedly
too-numerous attorneys brings such cases before the bench, to speak loudly,
clearly and firmly against such excesses.
If this book demonstrates
anything, it is that during the time span surveyed our courts have repeatedly
and amply proven two points:
- When the police and the prosecutors have ably and thoroughly developed their cases, terrorists will be brought to justice in full and fair trials; and,
- When our public officials over-reach, ignore and violate our ancient Constitutional rights, and lead us to the abyss of totalitarianism, our courts it is our courts, which must block their paths and push their behaviors back into balance. In those rare instances --- the Molly Maguires, Sacco and Vanzetti --- when the courts colluded with law enforcement officials and corporate interests, all hope of due process of law was lost.
Overall --- despite such occasional
aberrations as the federal court’s interminable, unexplained delay in ruling on
Sami Al-Arian’s pending motion to dismiss the criminal contempt charges still
pending against him as this book goes to press --- our American courts have
acquitted themselves admirably from the trial level to the highest courts of
the land across the 17 years covered here. As the detailed discussions of the major trials recounted in
these pages should suggest, attorneys on both sides have likewise performed
with competency and honor, on the whole.
Thanks to the size and vigor of the American bar, America’s 21st
century pariahs have had adequate, and often superior, counsel on their side…
vindicating, I believe, the point I made in my Preface, to wit, ours is not
under the present circumstances an over-lawyered justice system.
New Challenges Loom
According
to Professor Martin Henn of the University of Wisconsin, “It has become
increasingly clear… that Bush II administration officials working in the Office
of Legal Counsel, the Department of Justice, and the Defense Department
knowingly conspired to extend the President’s executive power beyond expressly
stated constitutional limits, unwarrantedly absorbing both plenary judicial and
legislative power to define and punish offenses against the law of
nation’s in America’s new global war on terror, while deliberately watering
down the legal definition of torture, so as to bypass strict humanitarian
limitations explicitly prohibiting U.S. forces from using torture and other
coercive interrogation techniques on captured persons of uncertain legal
status….”[1]
Henn noted that the successor
Obama Administration considered a special prosecutor to investigate these
abuses.[1]
In the wake of the resounding Democratic defeat in the November 2010
Congressional elections, and the subsequent loss of control of the House of
Representatives, the attorney general lost his appetite for such a step, or was
restrained by his boss. Still, a
muffled but persistent drumbeat for some such inquiry and possible prosecution
persisted.[1] As with the needless death of Jimmy
Pizzinato, and the smell of entrapment surrounding November 2010’s Christmas
Tree Bomber incident in Portland, over-zealous policing and prosecution in the
name of homeland security demands our unceasing vigilance.
And, so, while our courts must continue to dole out justice
to those properly accused and ultimately convicted of terrorism, our judges
must be alert for those cases in which --- as with the Molly Maguires a century
and a half ago --- military-industrial interests combine with the bloodlust of
a panicked public to trample our precious civil liberties.
The killing of bin Laden in
2011 and the winding down of the Iraqi and Afghan wars arguably marked the end
of the so-called “War on Terrorism.”
Regardless of who is President of the United States in 2013, absent some
new terrorist attack on American soil, we may anticipate a relaxation or
outright abandonment of the most reprehensible police and military tactics of
the first decade of the new century.
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