The Quality of Mercy

No, this is not another theatre review, but after seeing The Merchant of Venice and hearing the speech about the quality of mercy, I was reminded of a post that I wrote last year after President Bush signed another of his brow-beaten-into-law laws that is supposed to fight the GWOT but merely drags down the Constitution. Here it is again; it's just as true now as last October.

President Bush signed a law that creates a parallel legal system for military detainees. It eliminates the right of habeas corpus for non-citizens, removes many of the basic rules of evidence for these defendants, and gives the president the right to basically declare anyone he wants as an "enemy combatant." Anyone.

I've heard all the excuses: we're at war, the terrorists have lost all their rights to humane treatment, do unto them before they do unto us, and so on and so forth. I guess we could come up with any rationalization that fits into a soundbite or campaign commercial, but when you get right down to it, it's all just an excuse to exact revenge and respond in a visceral way to barbarism.

I freely admit that my knowledge of the law is based primarily on what I've picked up from television and Shakespeare, so I can't claim any greater insight to it than any other person who hasn't been to law school. But even a cursory examination of the foundation of the laws of this country and of Western civilization teaches us that we have a system that is dedicated to justice, not revenge. Justice means that we do not respond to a horrible crime by committing the same level of horror in response. We have matured from the level of exacting punishment as described in the Old Testament of "an eye for an eye and a tooth for a tooth," because if we had not, we'd be a nation of blind people gumming our Cream of Wheat.

I've heard a lot of people -- especially those on the right who claim to stand for law'n'order -- say that "terrorists don't deserve the same rights I have." Aside from the fact that rights aren't something you "deserve," under the new law it's all too easy to define what a "terrorist" is. The president may decide that terrorism isn't just confined to taking up arms against the United States or trying to pack C-4 into your Reeboks; he could decide that snarky bloggers or anti-war Quakers in Broward County fall into that category. Pshaw, you say; the president would never go that far. Well, excuse my cynicism, but a president who has already shown contempt for the laws already on the books and who uses his violation of the laws as his justification for asking for new laws to give him the power to do just that has already shown a willingness to define what terrorism is without any acknowledgement of the constraints of Constitutional law.

The counterattack from the right wing is the same predictable cant: you lefties are soft on terrorism and you care more about the rights of criminals than you do about the rights of citizens. The first claim is bogus and not worth repudiating, but the second one is truly the heart of the matter. The concept that a defendant is innocent until proven guilty gets a lot of lip service, but in our current climate it's become an endangered species. But it's the heart of our system of justice, and no one is considered guilty of a crime until a jury has rendered a verdict. Up to that moment, the accused is entitled to every right available to him under the law. If we shortchange that, what's the point of having a justice system at all? Why not just shoot them in the head as soon as you catch them? It certainly would reduce the caseload on the courts. (That's another lame excuse for eliminating habeas corpus; the courts would be clogged. Lack of prior planning is no reason to deny a defendant his rights.)

I don't know what they teach in law school, but I believe that one of the basic tenets of our justice system is a quality that is not written in Blackstone or the US Criminal Code. Our laws may be the foundation of our civil society, but it is our humanity -- our capacity and desire to show mercy even for the worst among us -- that gives it our soul. As Shakespeare notes,

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.

It is not weakness to administer equal justice; it is what separates the noble experiment and idea of America from every other system of government, and it is one of the primary reasons this nation was founded in the first place. Terrorists don't win when they are granted the same rights as other defendants, and equal protection under the law shouldn't be conditioned on the accident of birth within or without the borders of the United States; a person before the bar is still a human being no matter what country issued his passport. If anything, it is a sign of weakness and desperation to stack the deck against a defendant; it's conceding that we have no faith in the justice system and must exact our revenge in a way that brings us down to the same level as the criminal.

Cross-posted from Bark Bark Woof Woof.