Finite Justice

The other morning, on a Boston talk show, the host joint-broadcast with a talk show from the BBC. They were discussing Guantanamo Bay, and the prison camps there. The BBC presenter (their term) was opposed to the camps, while the American host supported them. The Brits brought on Member of Parliament and odious snake George Galloway, then followed up with a man who had been held at Guantanamo for two years.

This reminded me of Ann Coulter’s recent book, and one of the points she brings up — the tendency of the Left to bring in victims to give their political points credence. The 9/11 widows, in Coulter’s most prominent example, use their personal loss to add credibility to their arguments. Coulter says (apparently) that this is done to disarm their critics, to personalize the principles and make a rebuttal an argument a rebuttal of their loss and their victimhood.

I find myself speculating that while Coulter might be on to something, there might be a bigger issue at stake here — one that is too close for her to see.

The left, over the last few decades, has grown more and more dependent on using the legal process to win their battles. Repeatedly rebuffed through the electoral and legislative systems, they now find their greatest successes when they can persuade one or a few judges to accept their arguments and impose their rulings on the populace. Witness the rise in prominence of advocacy groups like the ACLU, which pour the lion’s share of their resources into litigation, not legislation. Or consider how gay marriage came about in Massachusetts, when four of seven justices on a single panel made a decision for an entire state of about 6.3 million people. Or in California, where ballot measures overwhelmingly passed by the people are struck down.

These incidents are symptoms, I believe, of the over-litigation of our society. The court system is seen as the panacea for all ills. Whatever the issue, the best solution is to simply take it to court and get a judge (or panel of judges) to decide.

In this context, the left isn’t exploiting the victims’ loss for their political gain. They are expert witnesses, people whose credentials on the issue in question are impeccable. Who better to discuss the effects of terrorism than a woman who lost her husband in an attack? Who knows more about how unjust Guantanamo Bay is than someone who was held there?

The problem is that our court system is very ill equipped to deal with such situations as the war on terror.

By design, our legal system is reactive. It is punitive. It most often intervenes after a wrong has been committed, and acts to right it.

But in the war on terror, those are simply futile.

We know the names and identities of the 19 men who carried out the terrorist attacks in 9/11. By the legalistic model, they should be arrested, tried, and upon conviction punished for their deeds. But unfortunately, during the course of the attacks (indeed, as an essential part of the attacks), they placed themselves irrevocably beyond the reach of our legal system. They are literally answering to a higher authority.

Likewise, this mentality has been playing out over the death of Abu Musab Al-Zarqawi. We found the terrorist leader and dropped a couple of bombs on him. He’s dead. End of story.

But not to the supporters of the legalistic model. Why didn’t we try to capture/apprehend/arrest him? Were any of those others killed innocents? How long did he live after the bombing? Did we try to give him medical treatment? Did we abuse him and make him suffer more during his last moments of life? Did we beat him? Did we execute him?

I have the same answer to all those questions: I don’t care.

Yeah, it might have been nice to catch him, wring him for information, and then quietly, without any fuss, execute him and dump his body in an unmarked grave somewhere. But that didn’t happen.

Were any innocents who happened to be in the house also killed? Irrelevant. By international law, combatants have an obligation to keep themselves away from non-combatants. A combatant is always a legitimate target, and to hide among non-combatants is strictly forbidden. If they do so and any harm befalls the innocents, then the blame falls squarely on the target’s shoulders. And in this case, Zarqawi is already dead, so it doesn’t really matter.

Further, capturing someone is an up-close and personal thing. It would have put the forces trying to capture Zarqawi at risk. He’d proclaimed at least once that he would not be taken alive, and would detonate a suicide bomb to avoid capture. If the commanders on the scene decided that instead of risking a single American or Iraqi life, they’d rather just drop a couple of bombs on the house and fumigate the place that way, I’m not going to second-guess them.

I’m not sure of the best way to win the war on terror, but I do know one sure way to lose it: to fight a purely reactive war. To wait for the other side to violate some law, then bring the full force of our justice system down on their heads. All that will do is teach them how to operate within the framework of our laws until they are ready to strike.

We’re seeing signs of that tactic already. The terrorists who set off bombs in Madrid and London kept very low profiles, below the radar of the authorities, for a very long time before they struck.

Our legal system is based upon a profoundly simple concept: life has value. Freedom has value. It is the coercive power of our system to deprive people of life and liberty that is the “stick” used to coerce obedience to the law. If you don’t play by the rules, we will lock you up or kill you. (What separates this from pure tyranny is the consent of the governed; we can, directly and indirectly, shape the law that is so enforced, as well as how strictly.)

But the enemy we face now is immune from such factors. They are not only willing, but eager to die for their cause. Their goals and aspirations are not in this world, but the next. And while we have palpable threats we could use to counter their spiritual beliefs, our own civilized, legalistic ways restrain us from fully using them. Bringing up the legend of General Pershing burying Muslim enemies wrapped in pigskin, largely refuted as a myth, is pretty much guaranteed to provoke out howls of protest.

So the reactive model is pretty much ineffective. That leaves two choices: pro-active, or surrender. And President Bush chose the former.

Regardless of one’s feelings about Bush, one fact is undisputable: since 9/11, there has been a single terrorist attack within the United States, and it wasn’t even targeted against Americans. Meanwhile, the terrorists around the world have diverted their efforts from massive slaughter of innocent civilian Americans, and turned their efforts towards our military.

This is not necessarily a good thing, but a less bad thing. I’d be willing to bet that given their druthers, nearly every man and woman in the service would rather not be attacked. But if given the choice between being attacked themselves and seeing American civilians being attacked, they’d choose to be the targets. That is the core function of the military — to stand between us civilians and those who would do us harm. And they are the best equipped to not only survive the attacks, but to kill the attackers.

Of course, fighting the US military is not the safest of pursuits. There are far less risky jobs, such as bungee cord tester, shark bait, and crash test dummy. So the terrorists have turned much of their focus towards non-American civilians. But even that is starting to backfire on them. According to much of the mainstream media, Zarqawi had alienated large portions of the Arab world through his barbaric acts. (This didn’t come out much until after he was safely dead, but it’s nonetheless an encouraging sign.)

But I seriously digress. Back to my original point: the legalistic model for the war on terror is a comforting one. It is reassuring to think that no matter what happens, justice will prevail. That there is always a calm, reasoned, civilized venue for the settling of grievances. That the law is supreme, and that all men and women are equal before the bench.

It’s a comforting thought. It’s just a pity it simply isn’t true.

Breaking news: Rove not to be indicted
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