A History, from Socrates to O.J. Simpson
By Sadakat Kadri
Random House. 459 pp. $29.95
In September 2002, Israel put the Palestinian leader Marwan Barghouti on trial for three lethal stabbings, two car ambushes and the thwarted bombing of a Jerusalem shopping mall. Barghouti had not been present at any of these terrorist attacks, but he was convicted of approving them as the leader of the al Aqsa Martyrs Brigades, an armed wing of Yasser Arafat's Fatah movement.
Barghouti's trial was supposed to showcase both Israel's suffering and the fairness of its justice system. But the Palestinian defendant stole the show. He did not allow his court-appointed lawyers to argue or question witnesses on his behalf; nor did he represent himself. When he shouted, "I am a fighter for freedom and for peace between two peoples," the presiding judge shot back, "Freedom fighters don't turn children into bombs and murder people" -- a slip that suggests she had already made up her mind about his guilt. Israel had the power to sentence Barghouti to five life terms in prison (and an additional 40 years). But it could not prevent the trial from burnishing his star. When Arafat died last year, Barghouti's support from prison helped clinch Mahmoud Abbas's succession.
How did Barghouti turn Israel's power against it? By refusing to recognize Israel's right to try him. In his eclectic history of the Western trial, Sadakat Kadri sheds light on the uncertain legitimacy of war-crimes trials from Nuremberg to the present. "The victors are the judges," Nazi commander Hermann Goring sneered shortly before the Allies put him on trial in 1945. "I know what's in store for me." Spiteful as he was, Goring had a point. Some of the Nuremberg charges were written by the judges and lawyers who then prosecuted him. Defense lawyers were barred from introducing evidence that the Allies themselves had committed war crimes such as the ones charged, though such comparisons mattered for deciding what lay beyond the bounds of conduct. And though the trials were supposed to establish individual guilt, they were permeated by denunciations of the Germans as a people. "Emergence of the truth was an almost coincidental side effect" at Nuremberg, Kadri concludes. When the Allies gave up on bringing former Nazis to justice in 1949, the perceived unfairness of the verdicts led West Germany not to accept them. "The upshot was that none of the thousands of convictions imposed by the Allied tribunals, up to and including that of Hermann Goring," writes Kadri, "would ever be recognized as valid by the criminal justice system of the Federal Republic of Germany." (Goring had already thwarted his captors, swallowing a cyanide pill the night before he was to be hanged.)
Kadri's wide historical lens allows him to show how the flaws of the past stubbornly crop up in the present. Slobodan Milosevic has successfully used his ongoing trial before an international tribunal at The Hague to whip up Serbian nationalism and, like Marwan Barghouti, to amplify his own popularity, according to Kadri. To avert a similar outcome in Iraq, American legal advisers are urgently trying to wrap the trial of Saddam Hussein in the cloak of domestic Iraqi law predating the Baathist regime.
Meanwhile, the "double standards that have always bedeviled the concept of universal rights," as Kadri puts it, are alive and well in the Bush administration's fierce opposition to subjecting U.S. citizens (especially troops) to the jurisdiction of the International Criminal Court, established by 160 countries in 1998. Like the Roman and British empires during their heydays, the United States claims the exclusive right to try both its soldiers and its enemies. Yet it barely punished the officers and soldiers responsible for the My Lai massacre during the Vietnam War -- Lt. William Calley, fingered as the on-the-ground ringleader, spent just three days behind bars. And it's hard to argue with Kadri's conclusion that indefinitely detaining foreign terror suspects at Guantanamo Bay, in defiance of the Geneva Conventions, has "done more to damage the international reputation of American justice" than anything since the days of Jim Crow.
Kadri is a practicing criminal lawyer in England rather than a professional historian, and he skips through thousands of years in a few hundred pages by telling stories and teasing out themes. Some of his choices are more original than others; the path from the witch trials of medieval Europe to the discredited accusations of Satanic ritual abuse at a California daycare center in 1984 is a well-worn one. And at various points, the book might have benefited from less storytelling and more argument. But when Kadri pauses for breath long enough to develop a line of thought, he has interesting things to say.
In particular, he is a smart critic of the virtue of public trials. Today's trial broadcasts are what public executions used to be, he writes -- only worse. Occasionally, a clever defendant like Barghouti or Milosevic succeeds in turning a trial into his own platform. More often, public trials merely skew criminal justice toward conviction. When lawyers become celebrities outside the court, "they turn to gladiators inside it, and restrictions on the prosecution come to seem like unfair handicaps rather than the centuries-old methods of avoiding mistakes that they are." Kadri argues that the 1980 Supreme Court opinion that gave the media unfettered access to criminal trials placed a higher value on what Chief Justice Warren Burger called the public's "fundamental, natural yearning to see justice done -- or even the urge for retribution" than on a defendant's right to a fair trial. In the wake of the Michael Jackson and O.J. Simpson circuses, Kadri's argument for revisiting the balance between openness and fairness is worth hearing.
But a 1978 Supreme Court decision may have the most significant effect on the future of American trials. By allowing prosecutors to threaten a man with life imprisonment for writing an $88 bad check when he refused to plead guilty, the court approved no-holds-barred plea bargaining. Today, only about 5 percent of defendants challenge the prosecution by taking their case to a jury for trial. When Kadri's successor historians come along in a hundred years, they may have fewer trials to work with. *
Emily Bazelon is a senior editor at Slate and a Soros Justice Media Fellow.