Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
Earlier today I participated in a presentation on my experience as an observer at Guantanamo. Along with a colleague who had observed the 9/11 Military Commission at the session that followed the one I went to in late January 2013, we presented a litany of the problems that we had observed. And, of the things that we discussed, we only spoke of a very narrow portion of what we had seen.
Going over these matters again, I was again shocked by what I had observed and, afterward., have felt an unrelenting sadness about a kind of indifference I sensed from those listening. It was an all too familiar silence that I have experienced in my life in the United States when things that I would think would be profoundly disturbing are simply not reacted to in a manner that would seem to me was appropriate. Maybe part of that resignation is a sense of powerlessness before forces that are unrelenting in their effort to extract vengeance in the name of some mix of dark emotions that surround our memory of the horrors of 9/11. It is a feeling like we simply do not care that minimal standards of decency that I associate with a minimum standard of justice are respected in the process.
The number of horrors that we have allowed our state to inflict on these individuals that we hate are so numerous and so exquisitely perverse in their degree and levels that one senses that there are really no depths to which we will allow ourselves not to go. And because there is no bottom to the levels to which we are willing to go, there is a deep and profound sadness that there is nothing more, nothing more exalted than this cold sentiment of being in front of carefully structured vengeance.
I watch the silence and feel like, as a lawyer, I am yelling in a kind of outer space where no one hears your scream. One comes up against something that reeks of a peculiar kind of very old and dark smugness and willingness to avert one’s eyes from the deeply problematic abyss that stands before us.
As long as there is some kind of happy talk that tries to put lipstick on the pig with our military serving a role of providing a thin veneer of propriety, we seem willingly to let the process go along to the inevitable conclusion of death at the hands of the state. No matter how tainted the evidence or the procedure, nothing seems to stop this relentless juggernaut from its appointed route toward the physical destruction of these defendants – a destruction that comes not from any sense of justice being done or being seen to be done, but from a sense that the state is exacting its revenge and – like an emperor in a Roman ampitheater who has put his thumb down – the crowd quietly exults in the arriving next act of the death of the hated ones.
Like a dark midnight hanging of an evil person, there is anticipation of that person’s death as the rope is carefully tied and put across the limb of the tree, put around that one’s neck. All watch the moving parts of this process in their exquisite complexity and simplicity at the same time as – like a horse on which the defendant sits – an innocent leads the horse forward until the defendant is left hanging in the wind to shake with spasms and then to become immobile in death.
This image of death and the expected rejoicing by so many at that death are what I feel I am being asked to be left with as I contemplate the twists of process, or procedural orders, and of a military judge on a short leash, in a process through which so many elements of what an American attorney is trained to be turn out to be inverted for prosecution and defense. It is to see things reduced to a simulacrum of what they are thought should be.
So it leaves me with an unrelenting sadness for all of us – especially the family members whose loss is only compounded by a loss of a kind of decency that is not always present but is something we aspire to have whenever judicial forms are being invoked.
This is not justice – this is thinly sanitized murder by the state – something that always troubles me as a power to allow a state to have even for (or maybe especially for) the most despised of us.