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Give Process Its Due

May 08, 2011 By: NCVeditor Category: Culture, Current Events, Jerry Elmer, Politics

Human Rights and Moral Principles Reject Extra-Judicial Killings

by Jerry Elmer

In early 1998, the U.S. Attorney for the Southern District of New York (Manhattan), Mary Jo White, convened a grand jury; and, on June 10, 1998, the grand jury handed up a criminal indictment against a certain man who was, then, a fugitive from justice.  The eight-page indictment alleged several serious federal felonies.  Some years later a successor grand jury expanded the original indictment; it grew to 29 pages, and alleged many criminal violations, including capital crimes.  The alleged criminal remained a fugitive.

In August 2010, President Obama came to believe that he knew the whereabouts of the indicted, but untried, man.  The President did not have the fugitive arrested so that he could be tried on the criminal charges pending against him (as the law requires).  Instead, the President resorted to a hit squad — a group of heavily armed men that went after the indicted, but untried, individual.

The hit squad found the fugitive, who was unarmed.  The hit squad did what hit squads do:  it shot the unarmed man in the head and killed him.

This is what human-rights lawyers the world over call an “extra-judicial killing.”  Human rights groups often accuse barbaric, backward dictators of committing extra-judicial killings.  Civilized people subscribe to the notion that everyone is entitled to due process of law — the government cannot execute someone who is merely accused of a crime.  Instead, the accused must be brought to trial, must be given the right to defend himself, and must be found guilty before he can be executed.

This idea is enshrined in the Fifth Amendment to the U.S. Constitution, which says, in relevant part, “No person shall be held to answer for a capital, or other infamous crime . . . nor be deprived of life, liberty, or property, without due process of law.”  The idea that you have to convict an accused person before you can execute him is not a newfangled one, a quaint result of our politically correct modern age.  The Fifth Amendment was ratified in 1791.

Nor is the concept uniquely an American construction.  Exactly the same idea appears in Article 10 of the Universal Declaration of Human Rights:  “Everyone is entitled . . . to a fair and public hearing by an independent and impartial tribunal in the determination of . . . criminal charges against him.”  The Declaration was adopted December 10, 1948; in honor of that adoption, December 10 is now observed worldwide as “Human Rights Day.”

Of course, this is not just a legal concept, but a moral concept as well.  The idea of sending a hit squad to kill an unarmed man who has not been tried or convicted of any offense is morally repugnant to civilized people.  This is an idea that most sixth graders would not have trouble with.  Indeed, if asked about this situation, many sixth graders would — quite rightly — be reminded of Alice in Wonderland (published 1865), in which the Queen says, absurdly, “Off with her head!  Sentence first — verdict afterward!”

Today, it is a commonplace to acknowledge that what gave the Nuremberg trials in 1945-46 their legitimacy and power was precisely the fact that due process was so scrupulously observed.  The defendants were informed of the charges against them by means of written indictments; they were represented by counsel, and (some of the defendants) presented elaborate defenses.  The defendants were convicted before being sentenced (and not all defendants were sentenced to death; Albert Speer notoriously published his memoirs — and raked in piles of royalties — after being released from Spandau prison having served his full 20-year sentence).  While we are on the point, we may pause to observe that Nuremberg defendants were very, very bad people — the likes of Martin Bormann, Hermann Göring, Ernst Kaltenbrunner, and Alfred Rosenberg, architects, all, of the Final Solution.  Very bad men, indeed, but nevertheless still entitled to due process.  Not one was hanged before trial (or simply shot on the spot when flushed out of hiding).

This month also marks the fiftieth anniversary of the Nazi war criminal Adolf Eichmann’s trial in Jerusalem.  The Israeli government, when it learned of Eichmann’s whereabouts, did not simply dispatch a hit squad to shoot the unarmed Eichmann dead on a Buenos Aires street.  Instead, the Israelis brought Eichmann back for a public trial, a trial that was televised worldwide.  (Robert Servatius, who had defended some of the lesser-known Nuremberg defendants, represented Eichmann.)  For the record, Eichmann, who was personally responsible for the murder of at least a million people, makes Osama bin Laden look like a small-time operator by comparison.  Presumably, at least part of the reason that the Israeli government went to the trouble and expense of mounting a public trial of Eichmann — and paying for Eichmann’s prominent defense lawyer — was because the government recognized the worldwide opprobrium that would result from resort to an extra-judicial killing.  (The Israeli government surely had multiple motives; as Deborah Lipstadt makes clear in her book published last month about the Eichmann trial, the Israeli government also saw propaganda benefits from a publicly televised trial.)

Then, as now, a simple fact remains: extra-judicial killings are done by outlaw states and rogue governments.  Extra-judicial killings are banned by international law and are morally reprehensible.

So, what can you say about a state that resorts to extra-judicial killings?  And what do you say about a country whose people by the thousands spontaneously dance in the streets when they learn that their own government has resorted to such barbarity?  What can you say about a country in which the President’s popularity shoots up in the wake of committing such a universally condemned crime?

Jerry Elmer is an attorney in Providence, Rhode Island.  He was a Vietnam-era draft resister, and was the only convicted felon in his graduating class at Harvard Law School.  He is the author of Felon For Peace (Vanderbilt University Press, 2005), which was published in Vietnam as “Toi Pham Vi Hoa Bing” (The Gioi, 2005); this was the first book by a U.S. peace activist ever published in Vietnam.

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