Aug 232009
 

Mike Semple Piggot, aka “CharonQC” has a post on his blog critical of the legal logic employed by Scotland in releasing and repatriating convicted Pan Am 103 bomber Abdel Basset Ali al-Megrahi far earlier than his sentence otherwise would have allowed for. Having invited comments, I posted the following (with a few edits), suggesting that the role of retribution in justice has been seriously overlooked in this matter, and thus explains why America and Americans are so upset:

I should say here that I am an American. I should also say that I believe myself to be much less a retributist than many other of my fellow citizens. The view from abroad of American attitudes towards crime and sentencing may be accurate, but I myself am rarely among the “string ’em up” ilk. (Further, I believe that this current administration is also much less so than their Republican brethren.) Philosophically I much prefer to focus on the rehabilitative aspects of sentencing than the more vengeful. And yet even my sensitivities are offended by this turn of events.

I point you first to this article about local reaction to the release in The Record, a newspaper for northern New Jersey, a suburb of New York City (where, for the record, I grew up and was living at the time of the bombing). Remember that Flight 103, an American-flagged carrier full of Americans, was on its way back to New York. New York may be this large global metropolis, an entry point into America’s vastness, but for many of us it is the final stop. New York is our “home town.” When terrorism strikes New York it of course strikes America and the world, but for us it’s a kick in our gut, an injury to the heart of our local community.

It’s a wound that needs salving. And that’s where the retributive argument comes in re: Lockerbie, because for all intents and purposes, it has not been.

Or maybe we thought it was, but now it feels like the sutures are getting ripped out. We trusted Scotland to represent our interests in its proceedings against al-Megrahi. We HAD to. Libya refused, despite penalty of sanction, to extradite him to the US to face charges for the harm he was alleged to have caused us. We were faced with the practical choice of Scottish justice, or no justice at all. So we took the leap of faith in believing Scotland could adequately stand in for us in prosecuting where we could not.

It would appear we were wrong. Because even without condemning the Scottish decision to commute the sentence (perhaps it really is consistent with Scottish law?) it shows that the only community capable to seeking redress for its own injury is the injured community itself. No one else can speak for it, for it isn’t just the result that matters (guilt or innocence, sentence or pardon) but the process of reaching that result. The very exercise of causing a defendant to answer to the aggrieved community, even if then exonerated, is what exorcises the injury. Moreover, even if America had on its own behalf reached the same result — a sentence commuted “in mercy” — it would have been OUR mercy to give. Instead, here Scotland has stepped in and unilaterally granted it on our behalf, yet against our will.

I hear the arguments that the early release and repatriation is the Scottish way and consistent with the Scottish legal ethic. That may be, but Scotland was in an unusual position of needing to advocate for more than just itself. It certainly had its own interests at stake, but it also had America’s, and Scotland’s ease in canceling out the result of the proceeding America entrusted it to reach seems an abrogation of its commensurate duty to this other community.

And not without consequence. Qaddafi now looks presciently brilliant to have manipulated the situation to get the trial in Scotland in the first place. What a “compromise” that turned out to be. What state sponsor of terrorism would ever refuse such a compromise in the future? But what chance is there for America to ever accede to such an arrangement again? The world often complains about America’s willingness to reach across the world to avenge its own injuries. But with this state of affairs America is learning that it may have no other choice.

 Posted by at 10:59 am

  6 Responses to “Lockerbie revisited”

  1. I have to disagree.
    (FTW, I’m a New Yorker, too. I think we do have a unique perspective on terrorists, or rather, many perspectives, informed by unique, in the U.S., exposure and experience to terror. It is hardly a uniform perspective, and the shared experience of horror, while it does pull us together in many ways, hardly brings us all to the same conclusions. Except perhaps a strong desire to succeed from the rest of the country.)
    You seem to be making three claims:
    – that retributive justice calls for al-Megrahi to die in jail,
    – that Scotland owes some moral duty or debt to the U.S. (NYCers?) to force him to die in jail,
    – That Libya was given a PR victory, and perhaps a bad precedent for future use in dealing with jailed terrorists.
    I certainly differ with you on the first, and, yes, most of the rest of the world does, too. A really well put example of how I feel is there, so I won’t rehash what was better written elsewhere.
    I’d suggest asking Scalia what duty Scotland’s legal system owes us. It would be interesting. But more seriously, I just do not see it. Psychic wounds, to my mind, do not trump humanitarian considerations of, yes, mercy. We are a bloodthirsty culture, and as much as I like much of our culture, that aspect is not something I can support. Feeling harmed because some horrible person isn’t going to die in a concrete box strikes me as overstepping the bounds of “victim’s rights” considerations by rather a lot.
    Ghaddafi, doesn’t need PR help, he’s quite good at that himself, and in any event, international d*ckwaving, in my view, shouldn’t trump humanitarian concerns. Put differently, if you think future terrorists and enablers will be emboldened somehow by the notion that a dying, used-up fanatic won’t die in a box, I would submit that you should think some more on motivations. In any event, any sort of signal that might be sent about victim’s rights, or resolve, or whatever is completely swamped by the noise this country has generated since 2001, and is generating right now. In fact, commentary like this just tends to have the effect of reaffirming the rest of the world’s beliefs, that the U.S. is a bloodthirsty culture with grade-school instincts about crime and punishment. I hardly think that is a signal you wish to send.

  2. You seem to be making three claims:
    – that retributive justice calls for al-Megrahi to die in jail,
    – that Scotland owes some moral duty or debt to the U.S. (NYCers?) to force him to die in jail,
    – That Libya was given a PR victory, and perhaps a bad precedent for future use in dealing with jailed terrorists.

    No, I’m not making the first claim at all, and for the second claim I’m saying that Scotland did owe some sort of duty not to act unilaterally. (Or at least no one should be shocked when the US is upset that it did.)
    Re: the first point I’m saying the retribution comes from the process of reaching the result. The US was injured, yet was denied the ability to hold him to answer for that injury. And now the US is forced to go along with this mercy idea? He never asked *US* for mercy. And yet we’re forced to give it.
    Re: the third point, I did start to get at that in the last paragraph. Deterrence is also an aspect to punishment, and on that front the Scottish decision completely fails. Remember Qaddafi INSISTED on the trial in Scotland, or no trial at all. The ultimate forum shopping for his charged terrorists. The US would have had to attack Libya in order to get him into one of our courts. But the trade-off may have seemed worth it to us because we felt, if convicted, he could have received a stiff enough sentence to dissuade future terrorists. But now, what terrorist would ever believe serious punishment would await them? Simply commit whatever crime they wanted, and just insist on being tried in Scotland.

  3. On point 1, Cathy may not make that claim, but I do: absent the death penalty (which Megrahi would have faced in US court: terrorism is a capital crime, as I think it should be), he should at the very least have faced life without parole.
    On points 2 and 3, I think Cathy’s covered my feelings as well: the crime was committed mostly against US citizens, on US soil (an American-flagged vessel in international travel): it was only Libya’s insistence as a precondition to extradition that meant he faced a Scottish court rather than an American one, and whatever your opinion of the evidence may be, the legal situation remains that this convicted terrorist was released after serving eight years for 270 murders. With hindsight, perhaps the US should have insisted that in exchange for him getting a Scottish trial and the associated short sentence, he serve that sentence in a US prison rather than a Scottish one.
    I agree with both Cathy’s final paragraphs, too: letting Gaddafi get away with this forum-shopping was a mistake, one future terrorists will be certain to demand again – and one I hope we will all learn from. I would certainly not support any future trial of this sort being held under the Scottish system – and I’m writing this in Scotland! MacAskill – whose fragile government seems to have narrowly escaped being brought down by his ill-considered actions, for the time being at least – has shown the world that Scotland simply cannot be trusted to punish the worst criminals there are.

  4. (Sorry to be slow responding…)
    As far as point three goes, James gets to my disagreement – attempting to deter Ghaddafis (current or future) by denying mercy to a dying man seems, speaking for me only, as morally unacceptable, full stop.
    On a realism plane, I think it is useless. The propaganda win – whatever, they had a photo-op, and got a bunch of people talking about how much they dislike Ghaddafi. The chaff we’ve been throwing since 9/11 as been sufficiently noisy in mixed signals that I hardly believe not forcing al-Megrahi to die in a box could tip anyone thinking of committing terror one way or the other. (“You mean if I get caught, and then get cancer, Scotland will let me go? I’m in!”) On things like this we’re so far off in the “sending a message”/tough on crime weeds that actions like this are meaningless as deterrent.
    As far as having the U.S. have more of a say in what happened, I see your point in an abstract sense, but my throw-away “ask Scalia” bit is actually somewhat applicable. If, in counterfactual-land, we want to provide this, how is it supposed to work? Back room negotiations? Some sort of international joint custody? (Can I get every other weekend, and Easter?) We’re-bigger-than-you bluster?

  5. Fishbane, I think it’s important to think about how this looks from a Libyan perspective. I’m probably lucky in this respect – I first learned of Megrahi’s release from a Libyan, who was talking about all the economic benefits Scotland would be receiving from Libya in exchange. MacAskill’s rationale may have been all about “compassion”, but Libya’s take is that they finally bought his freedom by setting up some sweet oil deals. Since they’ve been trying to do that for years now, it seems quite a reasonable interpretation from where they stand.
    Since we are ALL some number of months – perhaps less than one, perhaps more than 100 – from dying, I really don’t feel that putting a figure on it should make any difference. If he was supposed to die behind bars 20 years from now, why remove the bars because that date has been brought forward? Of course, my position is influenced by the feeling he should have been executed in the first place; would you have wanted to release him from prison as soon as his scheduled execution was three months away?
    There’s nothing too unusual about the international custody setup: it seems to have become quite common to repatriate prisoners, so they serve the remainder of their sentence in their home country – but have to serve it on the same terms to which they were sentenced. If you were to murder someone while on vacation in Edinburgh and get sentenced to “life with a tariff of 20 years”, after all the appeals had been exhausted or waived, you could be sent back to a prison in NY – but you’d have to serve the sentence just as if you were in a prison in Scotland: no appealing to US courts or getting the sentence commuted by the Governor, it’s still a Scottish sentence under Scottish rules, you’re just serving it in a foreign prison.
    A lovely irony struck me yesterday morning, though: the “terminal” condition is prostate cancer – for which the survival rate is very dramatically higher in the US than in the UK, since only one of those countries screens for it. Libya insisted that Megrahi be tried in a Scottish court rather than a US one for the softer sentence; with hindsight, that insistence may actually have made it a much shorter life sentence.
    (That’s assuming he genuinely has end-stage prostate cancer: it is just emerging in the UK press that MacAskill was misleading Parliament with his version of the medical evidence, with the “3 months to live” figure having much less reliable origins than we were first told.)

  6. So what do you think of Ghaddafi planning to pitch his tent in New Jersey before visiting the UN? On one hand for us to raise a stink about it just gives him more publicity, but on the other hand it seems unconscionable to do nothing. If only we could convince everyone including the media to just ignore him. He’d hate it! We need to convince that Orthodox guy who lives next door to the Libyan consulate in NJ to host a big, loud party that day instead of a protest. Just give everyone something else to focus on.

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