President Bush has promised to bring terrorists to justice. I wonder what he means. It’s a fair question really, one I’m surprised we haven’t asked. Where, exactly, is this justice and what will it look like should we succeed in taking our attackers there?
Before September’s attacks I’d been trying to write a play about a rapist. His name is Earl Shiner. In 1989 Earl forced a 7-year-old boy off his bike in the woods near Tacoma, Washington. There he raped the boy, stabbed him, choked him and cut off his penis. The Tacoma boy survived, accused his attacker and sent the state of Washington into a political and moral frenzy. Shiner, it turned out, had a 24-year history of sexual violence and had already spent a decade in prison for the kidnap and rape of two 16-year-old girls.
I can only imagine the collective shame felt as the people of Washington asked how they could have let this happen. Clearly, though, the pressure from this case was such that their previous ideas of justice simply exploded. In the aftermath of the crime, the state legislature passed the Community Protection Act, which addressed the problem of violent sexual predators with a solution known as indefinite incarceration. After serving their full punitive sentences, these inmates are re-tried under a civil statute. Those considered a risk to public safety are incarcerated again in therapeutic detention institutions known as Special Commitment Centers. Release is possible but rare, requiring the subjective approval of mental health experts. On January 17, the U.S. Supreme Court ended a protracted legal challenge by deciding the Community Protection Act functions well within the parameters of the United States Constitution.
But is it justice?
Recidivism rates among sex offenders are debatable, ranging from 7 to 60 percent. But nobody wants even a single Earl Shiner again. In circumstances so dire, probability becomes moot and certainty is coveted. Washington’s penal, political and legal communities took on a difficult task when they dared to wonder exactly when a rapist would be cured. What would be the proof? How could Earl ever show remorse and how much would be enough? What would be the sign of sincerity and how could officials trust themselves to recognize it? Now in response to conflicting studies regarding the efficacy of Special Commitment Centers, Washington legislators have begun to consider dropping any pretense of treatment and simply lengthening sentences for sex crimes to as much as 50 years in prison for first-time offenders and life for repeat offenders.
What is it we want from justice? Or is it justice we want at all? Though I shudder at their Orwellian empowerment of the state, at their notion of incarceration based on presumed intent, I have to admire Washington legislators for their attempts to achieve some kind of clarity, no matter how distasteful or draconian. They may ultimately find a sense of safety in simply boxing aberrant desire away. As poorly as this bodes for our civil liberties as a whole, there is something to value here. Washington’s treatment of justice has stripped away abstract ideas of fairness. Here the only virtue left to stand on may be the cold virtue of honesty, the honest admission of a citizenry’s bald fear.
It is at this psychic level of deep loss that rape survivors, mutilated little boys and people all over Washington State operate as they rethink justice.
Most sex between children and adults is initiated by trusted family members or friends of the family. Special Commitment Centers can do little to protect children from those closest to them. But it seems that the protection of children is not the point. Special Commitment Centers make Washingtonians feel safe. To run your hands across the wall of one of these institutions must be to know that what you have judged to be evil is now away from you, on the other side, maybe forever.
We should demand this same clarity of purpose from a President that has taken us into war and from ourselves who have followed. People, after all, are dying, and the powers of a magic word like justice are simply too strong, too charming to leave unquestioned.
In the days after the attacks I argued for unconditional peace. Yet, curiously, the more I think about justice the farther I move from such intractable ethics. For me the first reaction that got past the stupid shock of September 11th was fear. I was not afraid of another terrorist attack because I could hardly understand the first ones. I was afraid of us. I was afraid of the inanity of Giuliani and Bush and all who had a public voice in those first days, afraid of their inability to respond to our spiritual loss in spiritual terms. It is clear to me now that we simply have no public rituals, no communal response to terror and it is clear also that we hunger for them. The personal relationships we have with our clergy, families or therapists are not enough. If they were, we wouldn’t still want to squeeze some blood from the stone bin Laden has become in the public imagination; we wouldn’t desire him so.
As I try to make sense of our support of this war, my ideas of justice recede and I am left only with ritual, drama and symbolism on the order of the Special Commitment Center walls. This war may be our gesture toward deep psychic resolution rather than an honest prosecution of secular justice. Our inexperience in this field is evident in our lack of words to describe what is happening. Many have referred to Americans as the “victims” of September’s “tragedy.” Yet tragedy, as defined by Aristotle, is the telling of a great catastrophe that falls upon the lives of ordinary men who are neither exceedingly virtuous nor exceedingly depraved. Tragedies do not happen to victims and are never executed by villains. Instead, people touched by tragedy experience overwhelming shame, pity and loss. People who live a tragedy ultimately accept that there is absolutely no course of action that could recover their loss, ever. They are forced to reckon with the fate that any response to their tragedy would only deepen their pain, maybe even bloody their own hands.
The attacks of September 11th are, without a single thin doubt, tragic. But the national conversation around the attacks, from pundits to Billy Graham prayer meetings and, indeed, the war itself, is robbing us of a claim to tragedy. We are turning a very real tragedy into melodrama. Melodrama is a way of thinking based on recognition and punishment. Simply put, melodrama believes it can recognize and distinguish the virtuous victims from the evil villains so as to deal out punishment accordingly. Unlike tragedy, melodrama is an active mode that pushes man into conflict by promising a satisfying resolution.
Though often dismissed as childish or light, melodrama may be able to address sacred values now lost in our more secular age. Many ancient cultures used the ritual sacrifice of animals, for example, as a way to acknowledge, without pretending to heal, the great spiritual decay felt by the survivors of a catastrophe. Though we often think of sacrifice as an offering made to appease a god, sacrificial animals may also be invested with powerful emotions that need to be processed. Thus a slaughtered cow may stand in for a feared enemy or unwanted spirit. Melodrama uses this ancient template to order the world into victims who are vindicated and villains who are punished and expelled. In this model, the only justice left is a vicious and terrible one. In thinking of ourselves as victims of a bin Laden and choosing to react in war we have already stepped onto the stage of a melodrama that can only end by sacrificing the ritual cow of Osama bin Laden and Al Qaeda.
President Bush, backed by Attorney General Ashcroft, may already be a few steps ahead of this logic. The administration’s recent call for a secret military tribunal to try bin Laden and the Al Qaeda network assumes the right to levy the death penalty on those found guilty. Such a move operates squarely in the realm of ritual and symbol and has nothing to do with secular juridical justice as we know it. Until recently I believed Bush’s foreign policy advisors were sophisticated enough to know that the impartiality of U.S. courts, let alone the secrecy of U.S. military tribunals, would be unwelcome in a case of so much international consequence. Apparently I was wrong. Indeed, reactions to Bush’s military tribunal plan are already dismaying. Spain, for example, has refused to extradite suspected Al Qaeda operatives to the United States until we commit to a public trial and renounce the death penalty as a punitive tool. As is well known, countries whose Muslim constituencies wield significant influence, such as Pakistan, risk their very domestic stability by extraditing their nationals to American courts. In a case where international cooperation is so fundamental, our melodrama will leave suspects unprosecuted, evidence hidden and justice forgotten.
The problem with ritual, as much as we seem to need it, is that it only addresses our spirits, not our safety. That would be a much bigger challenge that would involve not only the impartiality of an international court but also the willingness to be mindful of cultures who want to live absolutely free of Western influence. There are still rapists and child molesters in Washington. There are still terrorists in the world. In lieu of taking on the more difficult task of assuring American safety, resident Bush can place the body of bin Laden in a mausoleum made of marble walls. When we suffer another terrorist attack we can visit this place, run our hands along its walls and know we are on the outside, where once we thought we were just, innocent and safe.
Farid Matuk is a poet and freelance writer living in Austin, Texas.