Your book spans a
range from the myth of Orestes to the trials of Bernhard Goetz and
O.J. Simpson. What changes did you observe during that long
period?
Trials throughout the pre-modern world were very often explicitly
religious rituals. Punishments, meanwhile, treated criminals as
pollutants or pests. In ancient Athens, for example, murderers
supposedly emitted a vapor that could be cleansed only by a court
hearing. Celtic druids burned wrongdoers in huge wicker men. And
lawyers in late medieval Europe prosecuted animals and human corpses
if they seemed blameworthy enough. It’s too easy to dismiss those
precedents as “superstitious.” Although our theories of proof and
punishment have changed, I was always more struck by the
continuities between past and present than by the differences.
Trials are still structured so as to repair damage to the moral
fabric of society. The hope remains that by exacting vengeance in
court, we will achieve a moral balance.
You began The Trial shortly before the September 11
attacks, which you experienced while living in New York. Did the
post-9-11 discussions of enemy combatants and military commissions
influence the book?
They certainly did. Modern trials can be understood in many ways,
but most people would probably underscore their role as a check on
state power. The Bush administration’s post-9-11 promise to bring
enemies to justice -- even “Infinite Justice” -- at the same time as
it consigned hundreds of them to the shadowlands of Guantánamo Bay
and Bagram made me realize, however, that the avoidance of trials
can be as significant as their staging. Although O.J.’s prosecution
is the last I describe in detail, the jurisprudence of the war on
terror pops up throughout my book.
Could you explain how torture, which has recently found
proponents once again in the U.S., first entered the history of the
trial, and how it then left?
The peculiar notion that violence begets truth has been around
for millennia. Ancient Athenians thought the evidence of slaves
inadmissible unless obtained through torture. With the fall
of Rome, torture’s use declined. Its formal reintroduction comes in
the early 13th century, the era of the Crusades, a precedent that is
instructive and alarming. In 1252, Pope Innocent IV approved the
temporary use of non-lethal force to extract information and
confessions. Torture then became integral to the inquisitorial
system for 500 years. The rack and thumbscrew were abandoned only in
the late 1700s thanks to the campaigns of liberals such as Cesare
Beccaria and Voltaire. This came with some pretty basic intellectual
changes: a new view of citizens as free agents whose humanity
entitled them to physical respect, and new developments in our
theory of knowledge that rendered apparent the logical shortcomings
of torturing someone to see if they ought to be tortured. Now we
have people who, in the name of combating barbarism, want to reverse
the Enlightenment.
Which brings me neatly to the next question. You highlight the
role of reforming jurists such as Pierre Ayrault in 16th-century
France and Cesare Beccaria in 18th-century Italy. Both were
instrumental in the ending the use of torture and secret trials.
Today, law professors in the United States like Alan Dershowitz seem
to play a more ambiguous role.
Hmm ... ambiguous is one word for it. The story I tell is filled
with so much lunacy and brutality that I certainly wanted to
highlight the positive where possible, and I was particularly
impressed by the wisdom and humaneness of Ayrault. When I began
writing, I didn’t know anything about him. Though he was hugely
influential in his time, he’s barely remembered today, even in
France. But I also write about other jurists whose contributions
were far more dubious: men like Jean Bodin, the French counterpart
of Machiavelli and Thomas Hobbes, whose late 16th-century writings
constitute some of the first justifications for state suppression of
civil liberties. One of the most influential of Bodin’s legal works,
incidentally, was a 1580 manual intended to promote the prosecution
of witches and werewolves.
Ever since the rebirth of rationalism in 12th-century Europe,
otherwise astute men have been convincing themselves that justice is
primarily about analysis and the power of the police to elicit
answers to pertinent questions. Dershowitz’s apologies for pre-trial
torture have placed him squarely within that tradition. To be sure,
he’s always prefacing his cheerleading for a law-on-terror with
caveats -- usually, the claim that he only wants a debate -- but I
wouldn’t really call his role ambiguous. To me, his willingness to
countenance needles under fingernails in order to combat evil
recalls the obsessiveness of men like Jean Bodin.
The U.S. government has developed a set of techniques to
circumvent the criminal process, for instance by using the
immigration process, or by designating people as “enemy combatants.”
How do these developments fit into the history of the trial?
The avoidance of trials has always been at least as significant
as their existence -- and the legal manipulations of the U.S.
government have often been extraordinarily cynical. The Pentagon’s
general counsel stated in 2002 that acquittal by a military tribunal
would not preclude continued indefinite detention. In June 2003
President Bush asserted a power to judge and punish Ali Saleh
al-Marri, who was already in the criminal justice system charged
with federal offences. And while some supposedly unlawful combatants
are snatched from courts, others such as John Walker Lindh and
Zacharias Moussaoui are selected for criminal prosecution. We don’t
know yet why these choices have been made. Arbitrary rule has a long
and sorry tradition in continental Europe, and the Supreme Court has
yet to pronounce on most of Bush’s pretensions -- but I’ve
nevertheless been amazed by the extent to which executive
unilateralism has been allowed to take hold in a country that is
theoretically governed by laws rather than men.
Aziz Huq works in the Liberty and National Security Project of
the Brennan Center for Justice and is co-writing a book on the
Constitution, national security, and executive power.
