PUBLIC ENEMY #1
Alphonse Gabriel Capone
And, the last time I paid attention to such things, Chicago was still identified in the minds of people around the world first and foremost with its criminal history. Predictably, when I used to tell people I met in China that I was from Chicago, they would smile, form their two hands into a "tommy gun" gesture, say "Chicago! Al Capone!" and spray me with "bullets."
Ancient history, yes, but still, there are lessons to be learned. Is there really any difference between the crimes of "gangsters" -- the way the criminal justice system counters them -- and the actions of "terrorists"?
Criminal law . . . military justice . . . and "in-between"
The story of the past decade-plus has been the story of the assertion by some that the conception of law that our society has is not sufficient. Simply put, there are those who say that there is a third, "in-between" category of behavior -- and legal status -- that is not civilian (subject to criminal law) and not military (subject to military law and the laws of war).
What this has meant that a whole range of behaviors -- ranging from acteually killing someone to simply being in the wrong place at the wrong time, or being related to the wrong person, or engaging in loose talk -- have been labeled as "terrorism" or worse and been punished by summary execution.
Most notably, this has been enshrined in the "unlawful enemy combatant" status used to justify Guantanamo detention and the surreal Obama administration definition of "due process" used to justify extrajudicial execution by drone.
Supposedly there are characteristics of behavior that justify the application of this new, "in-between" status -- a status which, unfortunately for all of us, is a legal no-man's-land.
But doesn't the history of the prosecution of organized crime in the United States prove that the law works? Even when dealing with very violent people?
The role of technology
|Technology in the Capone era|
Ironically, the complaints about "technology" only started to come after the the new weapons that the West was so thrilled to supply to fighters in Afghanistan -- like Stinger missiles -- got pointed back at us.
. .. which is a reminder the real technology we feel most threatened by are not cellphones, plane tickets, and bank transfers, but military weapons and state-generated threats like biological, chemical, and nuclear weapons.
And, after all, wasn't the story of the Capone era also the story of the organized use of new technologies like cars, phones, and tommy guns? (And creative accounting?)
(Umm . . . does social context have anything to do with it?)
I recently saw Bonnie and Clyde. I was struck by the way in which Clyde Barrow could say "We rob banks!" with such confidence: he knew that, as likely as not, people would feel no love lost for the banks.
The Prohibition Era that empowered Capone was similarly an era that made people cynical about "law and order." Corruption breeds corruption. (That may have been the origin of the unofficial motto of the City of Chicago: "Where's mine?")
One of the characteristics of the "in-between enemies" that the U.S. finds opposing it in so many parts of the world is that they have sympathizers. To be blunt: a lot of people around the world think the U.S. means them ill. The U.S. would do well to supplement its sophisticated and expensive law enforcement efforts with some good old-fashioned soul-searching: we need to get honest with ourselves into the root causes of these attitudes.
In love with being at war
|Cartoon courtesy John Jonik|
At the end of the day, the most salient feature of the "in-between" status we have bestowed on our enemies is that it allows for maximum war-making and maximum war-talk with a minimum of war governance. What we've ended up with is a state of permanent war united with a zero accountability government.
Where's Eliot Ness when you need him?
(See Too Much State Power? (Asymmetric Warfare and Asymmetric Policing))
(See Who Decides? (When Drones are Judge, Jury, and Executioner) )
(See September 5 in Pakistan: Another Day, Another Drone Killing)
Attorney General Eric Holder stepped down last week. Mainstream media commentaries on his legacy are all over the map. Perhaps it would be fruitful for one or more law school to avail itself of this stock-taking moment. What happened? Why?
(See Detention USA: EVERYBODY is Starting to Ask Questions! )
I'm awed by the apparent way in which the framers stepped up to the plate to write rules that bring about a new way of governing, in contrast to the one they had just stepped away from.
(See An Evening's Entertainment in D.C.: U.S. Constitution 101 )
The U.S. Constitution has become a second class citizen in 2010 America; at least while there are more important things like health care reform to accomplish.
(See Rahm to Constitution: Drop Dead )