On November 13th, Attorney General Eric Holder announced that the trial if the 911 attackers will be held in New York City. The stirring speech notwithstanding, Holder and the Obama administration are now retreating from the decision. CNN reports that the White House and the Department of Justice are considering a move out of NYC. This development comes amidst the mounting opposition to the original plan, culminating in 18 senators (including two blue dog Dems) introducing a bill to cut funding for the trial. All indications are that the administration will back down.
For the mind enthusiasts out there, the interesting part may have been the heavy-handed psychological jousting by both sides. More after the jump.
I was instantly putt off by Holder’s announcement that the trial of the 911 mastermind, Khalid Sheikh Mohammed, will be held in New York. The form of the announcement seemed a very strange combination of [get ready 911 attackers, you are about to meet the our wrath] and the ubiquitous recognition that the men to be tried might somehow not be the attackers:
[T]hose allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes . . . .
. . . The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.
. . . [A]nd while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators.
(as quoted on the DoJ website)
What the hell does this mean? How can you answer for your “alleged” crimes? And then, how can we be sure these guys are going to get their due if our system of justice presupposes innocence? The presumption is there because we, collectively, believe that it’s better to let a few guilty free to ensure that no innocent are punished. So, at least theoretically, these guys could go free (or at least not bear the full brunt of punishment).
The idea to hold the trial in NYC was more about symbolism than justice: revenge is best served in the place of the original offence. It has little to do with wanting to show to the world how fair our justice system is (or how fair we are as a people). I would guess that any first year law student would spot the jury pool contamination problem: NYC was the epicenter of the attacks. How hard would you have to look to find 12 impartial jurors in that city? Might even have difficulties finding them in the rest of the country: these “alleged” attackers have been tried and convicted by the media and government a long time ago. Perhaps rightly so, but the point is that nobody ever thought of them as “alleged” until Holder’s announcement. In any case, Holder’s message was quite thinly veiled: these are the guys; the trial’s outcome has been decided; let’s all enjoy the show.
There is nothing per se wrong with playing on the country’s desire for revenge. It mobilizes us, it helps spread the feeling of patriotism, it supports the belief that in the end we always win. All good things for a nation in 2 wars and in the throes of global recession. Sometimes, of course, desire for revenge makes us focus on the wrong target (see e.g. Iraq). But that doesn’t seem to be the case here: the agreement that the defendants here are the 911 attackers is unanimous (including the defendants themselves).
So how did Holder’s (and the Obama Administration’s) idea begin unraveling? The opposition was mostly in two forms. First, many argued that trial in the military justice system (i.e. at Gitmo) is more appropriate for these enemy combatants. The second argument was shameless fear-mongering less substantive: bringing the attackers to NYC (or any other U.S. city) is an act of carelessness which puts in danger the residents of these cities. Not surprisingly, this argument was presented by the good folks at FoxNews:
Some congressional republicans were eager to jump on that train too. Here’s Rep. Shadegg of Arizona:
Here’s Rep. Gohmert of Texas demonstrating his concern for those millions of people in NYC who will find themselves at grave risk if KSM is tried there:
Sen. Sessions of Alabama warned the Secretary of National Security, Janet Napolitano, about the dangers of “releas[ing the attackers] into the United States.”
Sure, the first argument (that we should try the attackers in a military court as enemy combatants) must have swayed many people. But intuition (and more reliably, psychology) tells me that the fear tactic was much more effective, at least with the general population. Numerous psych studies reveal that focus on fear can have a very tangible impact on our decisions. ScriptPhD recites some of the findings here:
This explains why we irrationally fear nuclear power . . . while we have no qualms about suntanning on a beach . . . . Psychologists Marty Frank and Thomas Gilovich showed that in all but one season from 1970 to 1986, the five teams in the NFL and three teams in the NHL that wore black uniforms (black = bad) got more penalty yards and penalty minutes than league-average, respectively, even when wearing their alternate uniforms.
The impact increases when the fear we focus on is the fear of crime or violence. Craig Anderson experiment, for example, shows that exposing people to pictures of guns makes them more aggressive. Ralph Taylor and Margaret Hale, in their article on the fear of crime, note that “once the population is sensitized to fear-related issues, that awareness is unlikely to dissipate rapidly.” This is because of the interesting phenomenon: as the crime rates rise in the United States, the fear of crime rises as well; but when the crime stats fall, fear of crime doesn’t follow as quickly… Better yet, if you add a threat of terrorism to the mix, you get some trully interesting results. Here’s one: we are willing to pay more for airline insurance for death from “terrorist acts” compared to insurance for death from “all possible causes.” (courtesy of Eric Johnson et al)
So both sides were priming audiences with some heavy-hitting psychological cannonballs. Then why did Republicans get the cigar here? Maybe because their substantive arguments were better. But maybe fear was simply a better buttress for their arguments. This might explain why Democrats’ accomplishments with a very popular president and a super-majority in Congress pale in comparison with the GOP’s very productive eight years despite its significantly lower firepower in both Congress and the Executive: GOP skillfully relied on fear to push many of its policies (Iraq, extraordinary rendition, wiretapping, etc.).