THE DEATH PENALTY IS NOT THE ISSUE!

It is probably well known by now to anyone who keeps up with the news that six detainees in the War on Terror are about to be put on trial for their alleged role in the attacks of 9/11. They will be tried by one of the notorious military commissions established by the Military Commissions Act of 2006. They are facing death, which is disturbing because if the judgement of this kangaroo court is ever overturned and the men are found innocent, we won't be able to give them back their lives. But what is equally disturbing is the way that some critics of this trial are focusing excessively upon the so-called "penalty". For instance, Clive Stafford Smith, a British lawyer who has worked with inmates at Guantánamo, says, "Anyone can see the hypocrisy of espousing human rights, and then trampling on them. We will infuriate our allies who firmly oppose the death penalty." ("US Accused of Using Kangaroo Court to Try Men Accused of Role in 9/11 Attacks," Truthout, February 12, 2008). It is hard to believe that anyone who is familiar with the hellish conditions under which detainees at Guantanámo live could be so callous as to wish to deny them relief. Death will surely be welcomed by men who have been put through such tortures. But if giving them relief from their sufferings were the only possibility, it would be better for legal precedent in this country if Al Quaeda were to bomb Guantánamo. From an American court, one would expect not just relief but justice. The trial in question does indeed trample on human rights. But that is not because the men are threatened with death. It is because, given the conditions under which they are to be tried, which violate every norm of due process, they cannot possibly obtain a fair trial, and therefore justice. If the so-called "penalty" is carried out, it will not be a "death penalty" but murder.

We must be careful not to hamstring ourselves here. After all, whether or not the accused in this trial are terrorists or not, there are terrorists among us. And unlike the accused, the real nature of whose crimes is not known and cannot be known given the conditons under which they have lived and under which they are to be tried, the crimes of the worst terrorists in the world are plain for all to see. They are the people who have organized this kangaroo court, and include the most powerful individuals in our government. The list would certainly include the entire Bush Administration and the entire leadership of the Central Intelligence Agency. If the American people ever get up enough courage to replace this thoroughly rotten government with one which respects the United States Constitution, we must be prepared to try them. And we cannot do so by Smith's standards. According to A.J. Langguth's Hidden Terrors, a Navy captain who had acted as a torturer for the U.S.-backed Brazilian dictatorship in the early nineteen-seventies, told Fernando Gabiera, a young journalism student and his victim, "I'm a torturer, but you are not. If the socialists ever come to power, I'll be in a good position, because you're a coward, and you won't torture me." (p. 201) It pains me to know that Gabeira did not have the presence of mind to reply, "You're right-- we won't torture you-- but you won't be in a good position, because you'll be dead. We will try you and you will most likely be executed for your crimes."

Whatever government replaces this one, which is badly in need of replacement (a replacement which cannot come about through this presidential elections farce, which is by now no more politically meaningful than the World Series), it must not stoop to using torture on a routine basis as this government does. Nor must it inflict any penalty without giving the accused the benefit of due process, including access to a writ of habeas corpus, a lawyer, and a fair trial. After all, we gave all that even to the Nazis. But the death penalty is a perfectly appropriate punishment for those found guilty of practicing political terrorism through PSYWAR, death squads, staged "terrorist attacks" etc. After all, if a person is really guilty, what is the alternative? So long as prisons remain the abusive places they are-- and given human nature, for which power is usually an irresistable license to abuse, they most likely will-- there is little difference between death and life imprisonment. Indeed, death may be the more humane alternative. And do we really want to support the Bush Administration and the leaders of the CIA at public expense for the rest of their lives? Don't we have better ways of spending public monies?

Let's make no bones about it-- terrorists convicted by a fair and public trial deserve death. That would be true of the men accused in the present case if they could be proven to have been the agents responsible for 9/11, which will not be possible because their trial will not be fair and public. But it seems very likely that the real responsibility for that tragedy lies elsewhere, in the very people who have tortured them in order to terrorize them into silence and are now proposing to murder them so that the the American people will never know the truth. And one can only hope that these criminals-- Bush, Cheney, the present and former Secretaries of Defense, the present and former Attorneys General, and General Michael Hayden, the Director of the CIA, among others, will someday receive the penalty they so richly deserve: death.