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.