What times. Give the government the power to assassinate terrorists, comes the call on chat shows. Don't burden citizens with the obligation of serving on juries for people who hate us, say the TV audiences. Spare us the circus of long public trials, say the letters to the editor. According to most polls, approximately 60 percent of Americans wholeheartedly endorse such measures through the vehicle of President Bush's recently ordered military tribunals. The figures also show that many of those same Americans seem to feel that such measures will affect only a few noncitizens and that the real subject of such tribunals will be Osama bin Laden. "They had to do it this way because you can't make a law against just one person," opines a friend.
Yet there are about 17 million noncitizen residents in America. By the terms of President Bush's order of November 13, all those people are now effectively living under martial law. I think that's a tad overbroad, although I concede that my opinion is currently in the minority. Rather, I wish to pursue my concern that the practical divide between "aliens" and "citizens" is a very thin one, one that is melting away quickly beneath the sun of this go-for-the-throat, to-hell-with-human-rights rage.
If Osama bin Laden is the icon by which noncitizens are deprived of constitutional protections, my sense is that O.J. Simpson has re-emerged as the justification for doing the same to certain citizens. "We wouldn't want Johnnie Cochran trying Osama," I keep hearing. "He'd end up in Florida, playing golf with O.J."
The Simpson case, a wholly anomalous piece of bread and circus, has come to symbolize a widely shared and unfortunately politicized understanding of the criminal justice system. "O.J." means: the misuse of public resources, the helplessness of prosecutors, the predatoriness of defense lawyers in particular and of trial lawyers generally, the cravenness of judges and the bias of black jurors. The case remains an object lesson in the sensational potential of reality TV. And in the fallout, the English language gained an ugly new phrase–"playing the race card"–that has been used to pulverize any constructive discussion of race or civil rights ever since.
The problem is that this rendering of the Simpson case is deeply misleading. And its reappearance in the context of whether Osama bin Laden should be tried or just "offed" is dangerous.
To back up a bit: When Simpson was acquitted of murdering Ron Goldman and Nicole Brown Simpson, the big question was why a very racially mixed jury (it intrigues me that people always think of that jury as "all black") acquitted him when the whole rest of the world wanted to hang him. Most people blamed the supposed stupidity of the jurors. But I think Simpson was acquitted not so much because defense lawyers befuddled the wits of the jury–however much the media bemoaned Alan Dershowitz's and Johnnie Cochran's theater–but more because the prosecution's chief witness, officer Mark Fuhrman, lied on the stand, was caught at it and was ultimately convicted of perjury for it. There really are very few cases where you can ever get a conviction if the credibility of a major prosecution witness is as shaky as that.
Moreover, LA residents–the jury pool in other words–were perhaps more aware than the rest of the nation of the LAPD's history of flagrant frame-ups, particularly racialized ones. The now-notorious revelations of corruption in the LAPD's Rampart division grew out of this precise concern: Hundreds of criminal cases had to be dismissed in Los Angeles in the past few years because of officers so eager to convict that they suppressed relevant evidence, or relied too heavily on snitches intent on plea-bargaining their way to lighter sentences, or lied, framed and even attacked minority defendants.
To this day, few people recognize the relation between the attitudes of the jury pool in the Simpson case and the Rampart scandal. My only point is that the practiced corruption–of lowered evidentiary standards, of self-interested witnesses and of shortcuts to conviction–poisons not just individual cases but the public trust and perception of fairness upon which all else rests.
To bring this back to military tribunals, such trust-eroding "street justice" is precisely the "cure" now being proposed in the name of "avoiding" more O.J.-like trials: indefinite detention in undisclosed locations, less than unanimous decisions to convict, execution without right of appeal, unidentified informants paid with promises of expedited American citizenship, ethnic profiling, etc. And therein lies the unsettling meeting point between the fates of those who dwell in the "mean street" and those in the "Arab street." People who have been marked as "suspect," or "other," whether citizens or noncitizens, understandably want–yes, even deserve–the Johnnie Cochrans of the world out there making sure the prosecution lives up to its burden of proof rather than just sending out a posse because a CNN poll says you did it.
I sometimes wonder if the historical role of defense attorneys has become too hard to see in our culture. It's about becoming an extension of the defendant. A "mouthpiece" in the literal sense. It is democratizing to have an advocate who knows the law and, theoretically at least, can present one's side as nominally well as the prosecution. Alas, it is also true that none of this makes us feel better about the fact that celebrity status, extreme wealth and not one but teams of lawyers can sometimes whip up a script–much like those hardworking Hollywood propagandists we are told the government has hired–that no one could resist.
What's that proverb about the exception proving the rule? It is as wrongheaded to think that O.J. Simpson represents the mass of citizens who are viewed as suspect profiles (and who are overwhelmingly poor, who are already convicted with far too much dispatch and who can rarely afford even one lawyer, never mind a dream team) as it is to think that Osama bin Laden represents the 20 million resident aliens in the United States, who if summoned before a military tribunal–just to begin with–would not have even the right to choose their own lawyers.