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S.J. Quinney College of Law

  Apr 20, 2014   |   Last update: April 17, 2014 @ 11:20 am

Who We Are

Jenica Maxwell

By Jenica Maxwell

In 1988, Massachusetts Governor Michael Dukakis ran for President against Republican nominee George H. W. Bush. On October 13, 1988, the two faced off in a televised event. Dukakis’s answer, to the first question asked, ranked fourth on Time Magazine’s Top Ten Memorable Debate Moments. Moderator Bernard Shaw asked the Governor, “if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?” Dukakis answered that he would oppose the death penalty, because he does not believe in it.[1] Overnight his polling numbers dropped from 49% to 42%. Dukakis believes this answer cost him the election.[2]

The problem with Dukakis’s answer isn’t that Americans love the death penalty.[3] The problem is that his answer is disingenuous. When you watch the debate, or you read what he said—you don’t believe it. Because as long as you’re a human being with at least a single person in this world that you care for, then you understand that what he’s saying is a lie. It is not my contention that if Kitty Dukakis were raped and murdered that Michael Dukakis would suddenly change his politics, or his deeply held beliefs. On some level, he would want justice. And whether justice is best served by harsh prison sentences, the death penalty, or programs favoring reformation and education is not the focus of this piece. My argument is that on some deeper level Michael Dukakis would want revenge. He would want to hurt the person who hurt someone he loved. Because he’s only human. And while we may be able to suppress our ignoble instincts, to deny them is to make liars of us all. What Dukakis should have said is this, “Of course, I would want the man who hurt my wife to die. I would want him to hurt because I would be hurting. But this is why we don’t make up our minds about who we are in our weakest moments. I decided a long time ago that the death penalty is wrong. And so I would hope to have the courage of my convictions if I had to face such a horror in my life. But, if I did, I would take comfort in the fact that our system of justice does not force the victim’s families to serve in the jury box.”

I was a teenager on September 11, 2001. I was at home when my Father called and told me to turn on the television. A plane had hit the World Trade Center.  We thought it was an accident, a navigational malfunction, something. We were talking about it when the second plane crashed. I’m sure you have a story that sounds almost the same. There are moments in our lives that can only be explained through shared history. Insulated in my small-town Utah home, I didn’t know a single person who died that day. But I felt the pain of it as an empathetic echo. We were collectively traumatized. I remember sitting with my family that night and listening to the President’s speech. He said, “Terrorist attacks can shake the foundations of our biggest buildings but they cannot touch the foundation of America.” He promised justice. And maybe, on some level, that’s even what we wanted. But, on some deeper, human level we wanted vengeance. It is my position that we’ve gotten quite a bit of the latter, and not nearly enough of the former. And analyzing our national motives gives the lie to the phrase “enhanced interrogation.” Because water-boarding someone 183 times doesn’t make a lot of sense if you’re trying to get information out of him.  But, water-boarding someone 183 times makes a whole lot of sense if you’re looking to hurt him, and keep hurting him because you feel that he deserves it.

In these remarks, I hope to make it clear that I am not judging anyone. We were angry and afraid—I was not an exception. C.S. Lewis once wrote, “Everyone says forgiveness is a lovely idea, until they have something to forgive, as we had during the war. And then, to mention the subject at all is to be greeted with howls of anger…And half of you already want to ask me, ‘I wonder how you’d feel about forgiving the Gestapo if you were a Pole or a Jew.’”[4] No doubt, some of you would like to ask me what I would’ve done if the fate of a 9/11 conspirator were in my hands.  Some of you would like to ask me if I would support torture if the fate of a beloved family member hung in the balance. To which, I can only respond, of course. Of course, every proper human feeling in me would be ignited were I put in such a terrible situation. And if I were desperate, and afraid, and allowed to make the choice—I might choose wrongly. Which is why we should be wary of decisions that we make when our emotions are heightened and our passions enflamed. It’s why we should make policies about how we treat other human beings when we are calm and rational. So that we cannot be swayed from those choices when our resolve is tested.

There are currently 166 “detainees” locked-up in Guantanamo Bay Prison. We cannot change what may have been done to these men in the past. But our response to the extralegal limbo in which these men have found themselves will define us as a nation. Earlier this month, 60 Minutes ran a segment called “Inside Guantanamo” following the progress of the trial of five 9/11 conspirators.[5] In the National Defense Authorization Act for 2012, Congress included provisions that effectively trapped the detainees at Guantanamo Bay—no Department of Defense funds can be used to transfer the detainees anywhere. None of the detainees may set foot on American soil. Despite the fact that Attorney General Eric Holder believes that federal court would be the best venue for these trials—the detainees will be tried by military commission.

An interesting narrative emerges when the facts are viewed in total. The CIA was able to use “enhanced interrogation” techniques against the detainees because they were not classified as Prisoners of War. Yet the detainees are not being allowed access to the United States court system, and are instead being tried like war criminals rather than civilian actors.  This Orwellian exercise in twisting definitions to get the desired result is not the worst practice exposed by the 60 Minutes segment.

The worst affront to our American expectations of Due Process comes when you realize that the Prosecution intends to introduce into evidence the confessions of the tortured inmates. During his interview, the Prosecutor says, “It is possible for a voluntary statement to be made after a passage of time, in a different location perhaps, with different questioners.”[6] There is no accounting for the logic behind this statement. Forgive the harshness of the analogy, but it is like saying that a woman who is raped so often that she stops fighting her attacker at that point consents to sex. The Supreme Court once recognized that “power, once granted, does not disappear like a magic gift when it is wrongfully used.”[7] Persons acting wrongfully in the name of the United States government possess “a far greater capacity for harm” than individual actors.[8]  Once you have tortured someone in the name of the United States government that specter will always be looming. You can’t take it back just by moving the prisoner and changing the questioner. How are the detainees to distinguish between a person who will torture them for not answering, and a person who will not? Once a prisoner has been tortured nothing they say in custody can be viewed as “voluntary.”

The defense attorneys are not allowed to talk about the “enhanced interrogation” techniques inflicted on their clients because everything surrounding those events has been classified. Does this sound like a system that is set up to ensure justice? Or one that is perpetuating a desire for revenge?

Perhaps most telling is the narrative that has emerged from the trial. The Prosecutors are heroes and patriots, while the defense attorneys are considered nothing more than advocates. A brief scan through the comments on the 60 Minutes website only supports the popular notion that terrorists (not alleged, not accused, but convicted at the bar of public opinion terrorists) do not even deserve the pretense of Due Process.  When confronted with the notion that defense attorneys believe these trials to be systemically unfair, the Prosecutor replies, “I don’t think the test of any system is what the defense counsels say about it.”

But that is exactly the measure of a system. Or at least, it should be the measure of our system. As Senator John McCain so passionately wrote, “This is a moral debate. It is about who we are. I don’t mourn the loss of any terrorist’s life. What I do mourn is what we lose when by official policy or official neglect we confuse or encourage those who fight this war for us to forget that best sense of ourselves. Through the violence, chaos and heartache of war, through deprivation and cruelty and loss, we are always Americans, and different, stronger and better than those who would destroy us.”[9]

Let us conduct our affairs with an overabundance of integrity. Let other nations say that we are too fair to those who wrong us. Let us do anything rather than continuing a narrative of bigotry and torture. If the detainees are guilty let there be fair trials, let them be convicted, and let the court decide the remedy. We have had twelve years and two wars for vengeance. It is time to let justice have a turn. 

Jenica Maxwell is a 2L at S.J. Quinney College of Law. She is originally from St. George, Utah. Her areas of interest include Criminal Defense and Family Law. 




[1] Dukakis' Deadly Response, Time (last visited Nov. 17, 2013) http://content.time.com/time/specials/packages/article/0,28804,1844704_1844706_1844712,00.html.

[2] Michael Dukakis Interview, PBS (Oct. 29,1999) http://www.pbs.org/newshour/debatingourdestiny/interviews/dukakis.html.

[3] American approval for the death penalty is fairly stable, but it doesn’t have unanimous approval. See Lydia Saad, U.S. Death Penalty Support Stable at 63%, Gallup (Jan. 9, 2013) http://www.gallup.com/poll/159770/death-penalty-support-stable.aspx.

[4] C.S. Lewis, Mere Christianity 115 (1980).

[5] 60 Minutes: Inside Guantanamo (CBS News broadcast Nov. 3, 2013) available at http://www.cbsnews.com/video/watch/?id=50158428n.

[6] Id.

[7] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392 (1971).

[8] Id.

[9] John McCain, Bin Laden’s death and the debate over torture, The Washington Post (May 11, 2011) http://articles.washingtonpost.com/2011-05-11/opinions/35232295_1_qaeda-interrogation-techniques-cia-detainee.