Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below, he examines our nation’s concepts of vengeance and justice in light of alleged 9/11 mastermind Khalid Sheikh Mohammed’s forthcoming trial in New York City. See Lim’s previous OUPblogs here.
There are four reasons which have been supplied to suggest that Khalid Sheikh Mohammed (KSM) does not deserve a civilian trial in New York:
1. This is what KSM wants – a show trial, and he should not get what he desires.
2. The trial will increase the risks of a terrorist attack in New York.
3. Classified information will be released in a civilian court trial, to the benefit of potential future terrorists.
4. The injury KSM has inflicted is a war crime, and not a domestic criminal matter.
1-3 are unverifiable predictions, sub-points to the main point, 4, which is the motive force behind the considerable agitation behind Attorney General, Eric Holder’s decision. Those who oppose a civilian trial for KSM want vengeance more than they want justice. This is exactly what Michael Goodwin has argued:
“Either try the detainees in military courts on secure bases or, best of all, give them death now. Mohammed and some others already acknowledged guilt and said they were ready to die.
I say we take yes for an answer.”
Well, there we have it. Goodwin wants vengeance primarily, and justice only incidentally. Now, vengeance and justice are not unrelated. Vengeance presumes the existence of guilt, so the pursuit of vengeance can lead to justice. Indeed, in an anarchic, godless world of all against all, vengeance is the closest thing there is to justice. To speak of justice would be a categorical mistake because without the apparatus of sovereignty and law, it is a standard that stands on stilts. We say “Justice under the Law” because without law, justice is a meaningless concept.
Goodwin and others like Mayor Rudy Giuliani who want to deny KSM a civilian trial believe, though they have not fully articulated their reasons, that the international milieu exists as a state of nature in which there is no universal law and no universally accepted sovereign law-giver, and therefore, the pursuit of justice is folly and the pursuit of vengeance necessary. If there is neither legality nor illegality, then there is only strength and weakness. Vengeance will have to do. This is why Rudy Giuliani insists on the frame that we are a nation at war, that we are dealing with terrorists or “enemy combatants” and not what John Yoo called “garden-variety criminals.”
To be sure, in a government of laws such as in a liberal democracy, justice takes on higher attributes that vengeance does not (and cannot). While justice is about law; vengeance is about necessity because it privileges immediate judgment over the process that would deliver such a judgment. While vengeance gives specific solace to those who were injured, justice assures all citizens that the system in which they conduct themselves works, – i.e., while vengeance is pointed, justice is blind, and while vengeance is preponderant, justice is proportionate.
Well and good. But as we consider whether or not KSM should have been granted a civilian trial, we need to determine the context in which we make this judgment: is terrorism a domestic criminal matter or an act of war? If the context is the former, then the Constitution takes precedence and it makes sense to speak of justice and that is what KSM deserves. If it is the latter, then because there is neither universal law nor a sovereign law-giver in the international milieu, KSM will have to suffer our vengeance because justice is not an alternative.
We have not settled on an answer to this question of whether or not terrorism is a criminal or a war crime because our historical definition of war has not caught up with its modern incarnation in which deterritorialized non-state actors perpetrate acts of violence. Our discussion over what KSM deserves is a footnote to this larger debate.
Elvin Lim is Assistant Professor of Government at Wesleyan University and 
author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Holder’s decision to conduct investigations on the CIA. See his previous OUPblogs here.
Attorney General Eric Holder’s decision to conduct investigations on the CIA presents a serious dilemma for the Obama White House, which was at pains to point out that Holder’s decision was independently made. I think the White House is being honest here, because these investigations will only be a distraction from health-care reform. The bigger problem thrown into sharp relief here, however, is that democracies’ commitments to justice and the politics necessary to deliver electoral and governing solutions do not always sit happily together.
The pursuit of justice (which is state-sanctioned retribution) is inherently a backward looking process. It most look to the past in order to establish that a wrong was committed. And to put things bluntly, even when properly meted out, justice often offers only cold comfort to whom injury was inflicted. Especially in politics, such returns are slow in the coming, if they come at all.
If the pursuit of justice pulls us back in time, the conduct of politics pulls us into the future. Power today is a derivative of the anticipated store of power tomorrow, which is itself a function of whether today’s promises are fulfilled tomorrow. Politicians (in active service) don’t have time for the past, for they must protect their future. President Obama is looking ahead to the health-care battles to come in the Fall, and he does not want (nor does he need) to be pulled back to rehash a contest with the last administration in which voters already declared him a winner in 2008. Justice and Politics do not go well in this moment, and Obama knows full well that he has more to lose than he has to gain in Holder’s investigation. To stay in office, he must offer a politics of solutions, and not the politics of redemption that his liberal base wants.
Strangely enough, Dick Cheney is on the side of liberal Democrats on this one, at least in the sense that he understands that democratic countries are bad war-makers. The difference of course, is that Cheney believes that democratic ends can be met with undemocratic means (while some liberals believe that war is sport of kings, not democracies). In Cheney’s own words on Meet the Press in 2001: “We have to work the dark side, if you will. Spend time in the shadows of the intelligence world.” Cheney’s thorough-going ends-justifies-means philosophy is revealed in his interview with Chris Wallace. “They looked at this question of whether or not somebody had an electric drill in an interrogation session — it was never used on the individual,” Cheney said of the inspector general’s report. “Or that they had brought in a weapon — never used on the individual.” This cavalier attitude towards undemocratic means stems largely from a very sharp line differentiating “us” and “them” in the neoconservative world-view, a line that takes off from a commitment to protecting the demos in a democracy and a characterization of all others as outsiders to our social contract. This line is imperceptible to the liberal eye fixated on universal justice, which presumes the basic humanity of even a terrorist suspect.
Democrats really want to go for Cheney, but they will have to settle for the CIA; Cheney wants to protect his legacy, but he will have to settle for a proxy war. The politicization of justice and the justiciation of politics are reifiying the turf battles between CIA and FBI, the very cause of the intelligence failures that led to September 11 in the first place. The mere fact that we are airing our dirty laundry in public is already having a “chilling” effect on CIA agents and both Cheney and Holder are complicit in this. Justice and Politics are friends to democracy individually, but we are better off without one of them in this case.
Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The 
Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at Presidential rhetoric. Read his previous OUPblogs here.
On April 16, President Barack Obama ordered the release of Bush-era Office of Legal Council memos on counter-terror tactics, and in a statement, declared that “A democracy as resilient as ours must reject the false choice between our security and our ideals,” echoing his inaugural position that “we reject as false the choice between our safety and our ideals.”
This is a perfect example of political equivocation, a rhetorical gesture that means one thing to liberals and another to conservative. For liberals, they heard the president say that we will not allow alleged threats to our safety to become the excuse for an assault to our ideals. For conservatives, they heard that just because the president must do whatever he must to keep Americans safe does not mean that we must compromise our ideals. And so everybody applauded Obama’s lyrical line on inauguration day.
In his April 16 statement, President Obama proceeded to explain his rationale for releasing the memos: “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
The President is balancing on a precarious tightrope. In releasing the memos he is trying to appease a liberal base looking for transparency and some say vengeance, and in guaranteeing those who used harsh interrogation tactics immunity from prosecution, he is trying to assure conservatives that he is serious about maintaining the morale of those who serve our country. Ironic, because though the president was trying to seal a can of worms, he may have re-opened it.
This is the acrobatics of modern politics. A gesture to one side, and a wink to another is Obama’s only way out. The release of these memos was a gesture of good faith to Obama’s liberal base who want justice, and yet a show of solidarity with conservatives who do not want to see a witchhunt. Consider that the real action of deciding who will be prosecuted has been conveniently delegated to Attorney General Eric Holder. Decisive action will force even the most talented acrobat to fall off the tightrope - for it requires a consequential choice. But Obama can remain suspended in mid-air - in his presidential honeymoon - as long as the American people are content with mere gestures. This may not be the case this time, because liberals are outraged at what the memos detail and this will put immense pressure on Holder to initiate some high-level prosecutions, just as this has mobilized the conservative base to preempt an impending witchhunt.
For several decades now, we have been too tolerant of presidents who have excelled in rhetorical shape-shifting in order to appear all things to all people. This has occurred in part because the American people have come to believe that presidential words amount to presidential deeds. Words easily permit ambiguity; actions do not. We have bought an artificial consensus at a high cost: politics has become a spectacle of acrobatic tomfoolery. The American people appear unenthralled by Obama’s performance this time though, and while democracy will benefit from this, it is not good news for the president.
