Complex are the issues we face as nation and world, but rarely does anyone seem to engage in the intelligent, extended conversation that illuminates and brings minds together, rather than arousing and dividing.
Such a rarity happened on Saturday in Hot Springs. I happened upon the Virginia Bar Association’s annual meeting. A friend suggested that I join him in a session on the legal and constitutional issues of trying terrorists. Speakers knew whereof they spoke: William Barr, Attorney General under G.H.W. Bush; Neil McBride who as a district attorney in Virginia must deal directly with such complexities; and Mike Allen, W&L ’86,, a reporter who gave a political spin on the otherwise legal discussion.
Not that the talk was filled with legalese. In common language, they laid out their perspectives. Taking a philosophical approach, Mr. Barr posited a fundamental distinction between protecting a society against enemies from elsewhere, primarily a military job, and disciplining transgressors within, which is the realm of law enforcement. Because a government, in the name of enforcing laws, can actually further its own goals and oppress its people, the Founders created a system of rights, developed over the years, to protect individuals: the right not to be held without being charged, the right to a speedy trial, the right not to incriminate oneself and so forth. Captured enemies are not lawbreakers, but are dangers to the society, so under laws of war they don’t have the same rights: they may be held for the duration of the war without trial, without the burden of proving they are enemies, and such. In turn, they have the right to confess only name, rank, and serial number. In other words, the fundamentally different status of each results in fundamentally different disposition of those held. So, he concluded, alleged terrorists should come under military tribunals. Good points—in fact, the best explication I’ve heard of that argument.
Mr. McBride didn’t disagree, but took a more pragmatic tack. Trying terrorists in civilian courts (under Article III of the Constitution) can be messy, he said, but also can be useful. No one may plead guilty in a military court, for example, as in an “Article III court.” POWs are supposed to be released at the end of a conflict, but a society might be better protected by imposing a life sentence on a convicted terrorist rather than releasing him back into the wilds. In other words, selecting between tribunals and courts depending on the situation enhances what he called the “toolbox” of responses. It might be easier to lock up a terrorist bad guy for, say, life, which may be more possible in a civilian rather than a military court. Good points as well.
So what to do when (a) the “war” is not against Germany or Japan but against “terrorism”? or (b) when the alleged culprit is a citizen endowed with constitutional rights? All of Mr. Barr’s examples came from World War II when the enemy was clear, surrender ended the conflict, and prisoners were generally non-citizens. He declared absolutely that any U.S. citizens should be tried in Article III courts; their alleged acts do not erase their rights. And, faced with the vagueness of the current enemy, while he didn’t formally agree with Mr. McBride, he headed in that direction.
Was the issue resolved? No, but it illuminated the conflicts of balancing social safety and personal rights, of protecting the nation and protecting the individual as no 30-second sound bite or 10 minute talking-head interviews can ever do, especially when the heads are talking to their own base. It showed the legitimate but complicated concerns at hand that in the end require careful consideration, nuanced explication, and dispassionate thought—little of which seems to occur anymore in a public square more interested in political one-upsmanship.
Yes, this process takes time, attention, and patience, along with the humility of dropping one’s biases long enough to listen to others’ perspectives. But it is exactly the kind of thoughtfulness that our Founders expected and (to some degree) demonstrated in order to create a more perfect union.
If we really want to follow in the founding ideals of our nation, this kind of talk provides one vitally important way, upon which all the others depend.
Column by David Cox. This column originally appeared in the July 28 edition of the Rockbridge Weekly. Reprinted here with the permission of David Cox.
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