Show Trials and Mass Imprisonment: Terror Justice Parallels Criminal Justice

The new detainee treatment bill passed by Congress is often contrasted with the higher standard of protection for defendants provided by both military and civilian criminal justice in the United States and accurately. Even the enhanced protections offered terror suspects placed on trial are a far cry from the protections accorded defendants in ordinary criminal trials. In another respect, however, the new model of what we might call "terror justice" parallels the US criminal justice system. Both operate an essentially bifurcated process. At one pole of this process are celebrity defendants, either by virtue of their previous fame or the infamy of their crime, or both (OJ Simpson). In the terror context these are the so called "high value" Al Qaeda prisoners that were recently brought to Guantanamo Bay and now likely face trial before military tribunals to be quickly formed under the new law and implementing regulation sometime this spring. (Officials Plan to Move Quickly for Terrorism Trials in the Spring). In the domestic criminal justice context, these are usually defendants charged with aggravated murders. In both cases the government's intent to execute the defendants makes the cases inherently more spectacular. Here also the process becomes the most protective involving adversary proceedings with rights to challenge the evidence before a somewhat neutral decision maker.

While there is likely to be a huge proceedural gap between the criminal trial of a capital murder defendant in civilian court (or military court) in the United States and that which Khaleed Sheik Mohammed is likely to face in a capital trial before a military commission sometime this spring, both differ greatly from the fate a far larger mass of anonymous "low value" criminals. At this opposite pole of both the terror and the criminal justice system, suspects move from the street the prison based largely on categoric judgments of dangerousness based on demographic considerations like race, age, and sex. In contrast with the show trials at the other pole, these mass prisoners move into incarceration based on largely ureviewable executive discretion. It is true that defendants in the US domestic system have a right to a lawyer and adversarial trial, but as Professor Markus Dubber forcefully argues in his book, Victims in the War on Crime, for large swaths of these defendants charged with possession crimes (like possession of more than five grams of crack cocaine) and possession/status crimes (like being a felon in possession of a weapon) these procedural rights are virtually meaningless (at least after suppression motions have been attempted) and most move swiftly to prison with only the marginal involvement of the adversary process and little or no public attention.

Where Have You Gone Joe Friday? Technology and Mass Surveillance vs Old Fashioned Policing in the War on Terror

As we reflect on the 5th Anniversary of the terror attacks of September 11, 2001 it is important that the debate over security versus liberty (and privacy) not obscure the debate over how security is to be obtained. Let us start with the blunt fact that from a policing perspective, the 9/11 plot was highly vulnerable to traditional suspicion based surveillance. As documented by the 9/11 Commission, American officials were aware of the presence within the United States of all of the terrorists. Some of these individuals were known by other American officials to be involved in militant Islamist politics in Europe. Famously our government agencies "failed to connect the dots" but that should not satisfy us. Any close surveillance of these individuals would have raised many deeper reasons for suspicion. Why were they in flight schools? How were they being financed? Even had prior knowledge of the terrorists not identified them as persons worthy of suspicion, their behavior alone, especially their highly irregular conduct in Miami when Mohammed Atta and one of his associates flew a small private aircraft from their flight school to the very busy Miami International Airport, and then left the aircraft on the tarmac after abandoning their take off.

Instead of an effort to improve our law enforcement ability to identify and follow suspicious persons, the Bush administration's war on terror has consisted of intimidating orders to appear for questioning to thousands of Muslim immigrants to the United States, imprisoning for five years hundreds of apparently "low value" suspects in Guantamo, torturing (or close to it) higher value suspects in secret prisons around the world, overthrowing governments in Afghanistan and Iraq and replacing them with apparently more democratic governments which continue to survive only with US military (or NATO) life support, and high technology surveillance of international phone calls.

This is a broader pattern of global security that has fed on the bad example of the American war on crime. While the rhetoric of the war on crime celebrated police, the tactics emphasized rounding up low value suspects through relatively easy low grade surveillance and seizure. For more serious crime coercive interrogation, jail house informants, and if necessary, police perjury became all too common approaches as DNA exonerations in recent years and the exposure of police fabrication in the conviction of over forty mostly black residents of Tulia Texas case has documented. The minimal concern with the seriousness or even guilt of arrestees reflected a belief that incarcerating large numbers of potentially dangerous criminals would repress crime so careful investigations were superfluous.

We see it reflected in an international anti-doping effort in sport that is largely dependent on drug testing rather than police investigation. (See, Brian Alexander, Tour de Farce).

We see it reflected in the preference of many contemporary mayors spending money on high technology license plate readers and road side video surveillance cameras over money for community policing.

The reliance on technology and mass surveillance over close police investigation of suspicious individuals is promising only if you like the logic of the war on drugs. We need a new paradigm across a whole set of security problems (from terror, to urban crime, to white collar crime, and to sports), but fortunately its an old paradigm, i.e., investigation that relies on knowing a community and its residents rather than on broad dragnets or coercive tactics. A community policing approach, to say, doping in sports, would not require harsh prison terms for those found doping, or even formal criminalization. Police can seek to discover the source of nuisances that endanger the health and well being of the community and seek civil measures to restrain the abusive behavior.


What would a "community policing" approach to homeland security look like? First it would involve direct contacts between law enforcement and Muslim immigrant communities to assure them that they are part of the community being protected and that threats of hate crimes as well as initimidating tactics by federal authorities. Political scientist David Thacher has described this kind of approach by the police in Dearborn Michigan, a city with the highest concentration of Middle-Eastern immigrants and their off spring in the United States. Second, it would involve expanding police staffing to permit permanent site appropriate surveillance of vulnerable terrorism targets (police departments today are doing this on a limited basis, but at a cost of stretching existing resources). Third, it would require upgrading the communication and command integration of police and other first responding organizations to assure that rescuers would have the best possible chance of saving lives (including their own).

Bush Returns to the War on Crime as the War on Terror in Iraq Falters

In my forthcoming book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP NY: release date October 18, 2006)
I explore the ways America's long "war on crime" has influenced not just elections but how American institutions govern. Since the 1960s politicians and leaders of all sorts have shifted their focus to addressing problems defined as crime problems and emphasized the tools, rhetorics, and mentalities of criminal justice, especially practices of exclusion and punishment. No office has been more shaped by this than that of the American presidency and no president (including Nixon and Bush I) more exemplifies the conversion of commander-in-chief (and New Deal economic commander in chief) to prosecutor-in-chief, than George W. Bush. As Govenor of Texas, Bush emphasized tough punishment for juveniles, the death penalty, and a quasi crime model of reforming public services exemplified by the test, stigmatize, and punish model of school reform he eventually legislated on the national level as No-Child Left Behind. Presiding over the execution of more than 150 condemned convicts, Bush entered office the most sanguinary chief executive in a western country since the death of Francisco Franco. The attacks of September 11, 2001 gave Bush a chance to remake himself as a national political leader on a different landscape of international affairs and national defense. Eager to declare himself a "war president" and invoking chief executives like FDR, Bush lambasted his 2004 Democratic opponent for taking a "law enforcement" approach to the war on terror. But two years later, as a national consensus emerges that the war in Iraq is both a disaster and one only loosely coupled (even now) with the specific threats that emerged on September 11, Bush has returned to the tried and true path of chief executive as prosecutor. In the third of a series of speeches widely telegraphed as designed to set the agenda for the fall Congressional campaign, the President announced that 14 "high profile" terror suspects will be moved from previously unacknowledged CIA secret prisons to the governments detention center in Guantanamo Bay Cuba (see New York Times story). The move toward openess was explicitly justified as necessary to enable all the families of September 11 victims to receive justice (presumably through the conviction and execution of major Al Qaeda figures). In doing so Bush is making the now classic crime moves of an executive: define a frightening figure of criminal violence, step forward to impose harsh punishment in the name of victims, and dare legislative and judicial institutions to set limits or impose obstructions in the name of due process. Bush (and probably Rove) believe this offers the best chance to shore up Republican prospects against polls showing strong national preference for the Democrats and disenchantment with both the war on terror and the economy. Will it work? I'm not sure, but I am confident that if followed this strategy will close the gap in national opinion polls before the November election.

Labor Day with Memories of May

Americans pay tribute to labor on the first weekend in September and to make sure no one connects that to the socialist/communist tradition of celebrating labor on, May Day, or May 1st. Never a nation to leave its ideological belt unprotected by suspenders, tbe United States also marks May 1st as "Law Day."

This labor day, however, a more direct effort will be made to connect the two days. Undocmented immigrants and their supporters in several major cities are planning to march again as they did in numbers not seen in decades last May.

Labor day also marks the historic beginning of the fall campaign in federal election years. This year the Republican majority in the House and Senate is under menace and we can expect a resumption of last spring's effort by the Republican majority in the House to enact a law marking the undocumented non-citizen as a felon.

Observers of the May 1 marches by immigrants and their supporters may well wonder what precisely these demonstrations meant. The multitudes that took to the streets of American cities carried many signs, some of which point in different directions, but that should not stop us from receiving the message they could agree on. What the marchers all shared, and pronounced loudly and clearly, was the rejection of crime as the primary category in which to place the problems posed by all, most, or even many, of the immigrants who enter the United States without the permission of its government.

US laws require immigrants to obtain permission before entering this country, but that does not mean it is sensible for government to treat the millions of individuals currently doing so primarily as serious criminals. The current House bill would convert what is now at most a misdemeanor (the least serious crimes which are rarely punished with imprisonment) to an “aggravated felony.” While it is tempting to treat this aspect of the House bill as “extreme” (and what ever ultimately emerges from Capital Hill is certain to proclaim itself less so), the logic of taking complicated social problems as mainly about crime has become a common, indeed I would argue, distinctive American approach to governance in recent decades (one participated in by both parties with full enthusiasm). The appeal of governing through crime has become so strong that reform of many kinds in many important institutions in the United States today must work its way along paths of association with serious crime (or its latest variation, terrorism). It is hardly surprising that our law makers would return to this trusty solution to political consensus (and indeed crime and immigration policies have steadily converged in recent years).

But what the marchers call us to consider is the high cost for all of us in treating as serious criminals, the vast majority of immigrants who come here not to steal or assault, but to labor for an honest (if low) wage regardless of the legal status of their entry. Defining such people as “aggravated felons” invites further policy development to look toward even more reliance on law enforcement and harsh punishments, at a time when unprecedented numbers of people are already incarcerated in the United States. It also invites those of use who enjoy legal status here to view ourselves primarily as crime victims rather than as workers, consumers, and taxpayers, who receive a bewildering array of costs and benefits from the large pool of laborers who enter without permission.

If we listen a bit more to multitudes of May, we can hear a second clear message. This is primarily a problem of labor. Placing illegal immigration in the category of labor does not necessarily point to a clear (let alone a simple) solution. Indeed it is likely to confront us with serious conflicts, not just between those here legally and those not, but within the much larger first group. Labor problems have always divided Americans in ways that crime problems rarely do. There are inevitably different interests and none of them can be morally excluded (the way we largely do the interests of “aggravated felons”). American politics once swirled around the problems of labor, but in recent decades that framework has fallen silent (often replaced by talk about crime concerns). Being called back to those conflicts will not be pleasant (especially for politicians) but this is where the new debate in Congress should start.