The Problem With An Impersonal Justice System

The American staff sergeant who slaughtered sixteen Afghan civilians in the middle of the night, including women and children, then turned himself in and confessed, "could get the death penalty".

Could get the death penalty? Are you kidding?

I've written elsewhere about the message of justice within the context of the fighting in Afghanistan. As with that post, the emphasis here is not what sort of message is sent to the Afghan government, or the Taliban, or Muslim extremists, or the American people. Well, actually, it is, but only secondarily.

I'm not here concerned with
Relations between the United States and Afghanistan, which had spiraled into violence after the unintentional burning of Korans by American forces and other perceived insults, had begun to show small signs of healing.

But all that’s in jeopardy now.

The massacre cannot, must not, be allowed to overshadow that legacy. More than 2.2 million Americans have served in these wars. (link)

What does that have to do with justice?

The most important thing that is at risk right now is that justice will not be served at all. Forget all the groups that are watching this with interest. The machinery of American justice has begun to grind, and given that it is just that, machinery, it will fail to fulfill its primary function: doing justice. Not "dispensing" justice, as if it were a machine.Doingjustice.

I'm not talking about the death penalty here. I think it's safe to assume that the military will execute this soldier. And that is right. I don't expect the miscarriage of justice to come in the verdict or sentence. I expect it to come in the manner of the trial and judgment. The U.S. may execute the man, but it's not going to be personal.

And it ought to be.

It's personal for 60-year-old Abdul Samad. Eleven of his family were killed by this man.

Again, this is not about the war in Afghanistan. But the differences in culture and worldview make our views of justice stand out just a bit more. Understand that I would want what I'm about to propose for some family in Ohio if they were victimized in a similar way.

Justice may certainly be impartial, but it can never be impersonal or disinterested.

Justice ought to be about vindication and revenge. Yes, I said revenge.

The whole point of a justice system is to take vengeance out of the hand of the private citizen. It's to put vengeance in a context of punishment and weregild; once those are dealt out, the matter is over. Clans don't spend generations battling clans because of one crime. The justice system does not exist to "keep order". It exists to protect. To vindicate. To, insofar as is possible, to redeem. All much more personal concepts that "order". Order dehumanizes. Protection and vindication humanize.

Unfortunately we think justice ought to be impersonal. We killed Osama bin Laden and hid his body, as if we were ashamed. We should have put his head on a pike. But all we think about is maintaining order; people would have freaked out!

I have absolutely no problem with the U.S. military resisting Afghan claims to hold this trial themselves. But to hold the trial in the United States, as if it had nothing to do with Mr. Samad?

Here is what justice would be. Pay out the weregild, as has been our custom throughout this war. Try the murderer at his base. Publicly. When he's found guilty, execute him publicly. Maybe even, not as a concession to Islam, but as a nod to our Anglo-Saxon legal origins, put his head on a pike for all to see.

Because this is personal. For a lot of people.


Post a Comment