JURIST Guest Columnist Lawrence Douglas, Professor of Law, Jurisprudence and Social Thought at Amherst College, says that the cell phone video of the Saddam Hussein execution has revealed it to be an exercise in revenge, not justice...
Perhaps not. Still, the ugly show managed to surpass even the most cynical observer's expectations of tawdriness. It achieved the unimaginable: it made a mass murderer appear more dignified than his executioners. Worse yet, it has cast a pall over the trial that ended in the sentence of death. In an earlier JURIST column, I argued that Hussein's trial had not been a complete sham. However flawed and deeply flawed it was it appeared that the trial had disappointed the doomsday prognostications of those who had foretold a legal catastrophe. The trial court's written judgment, released a few weeks after its announced verdict, ran to three hundred single-spaced pages in its English language version, and included closely reasoned discussions of the case's thorny procedural and evidentiary issues. Yet whatever fairness, good faith and juridical sobriety were evinced in this document has been entirely eclipsed by the execution itself. In our global culture, the battle between the word and the image is no battle at all. Three hundred pages of legal argument cannot answer two minutes of grainy cell-phone video.
For many, then, particularly within Iraq, the shameful execution will supply the final proof that the trial was, from the get-go, about nothing more than revenge. Retribution obviously is an acceptable and widely accepted goal of systems of criminal justice. As a sober act respectful of the punished, retribution seeks, in the words of Hannah Arendt, "to put an end to something that without interference could go on endlessly." Revenge, by contrast, "acts in the form of re-acting against an original trespassingâ¦permitting the chain reaction contained in every event to follow its unhindered course." Or in the words of philosopher Jean Hampton, the "vengeful hater does not respect but aims to diminish the worth of the offender." Other commentators have already observed that far from contributing, however modestly and belatedly, to the goal of a unified and peaceful Iraq, the vengeful display on the gallows will simply fuel further sectarian violence. Arendt's and Hampton's arguments, however, cast this insight in sharper focus. Ending in a display of vengeance, the trial itself has now been irrevocably cast as an exercise not of the rule of law but of tribal hate.
For some, this may be seen as further evidence of the larger folly of the death penalty. Headlines on the New York Times front-page for January 3 neatly made this argument in bookends. Next to an article describing Iraqi Prime Minister al-Maliki's pledge to uncover the source of the leaked video, the Times ran a piece about a legislative commission in New Jersey that had recommended the abolition of the death penalty as a practice "inconsistent with evolving standards of decency." It goes without saying that the Saddam video would appear to support New Jersey's conclusion. Indeed, from the perspective of a staunch opponent of the death penalty, the Saddam video could be seen not as anomalous but as representative of a deeper truth about the penalty: that it is always about revenge. If anything, our attempts to render the death penalty clinical, antiseptic and invisible, a "humane" practice administered by persons in lab coats, are all the more sinister. The Iraqi display, unseemly as it was, at least had the candor of reminding us of the penalty's inevitable connection with violent spectacle and bloodlust.
And yet I would insist that it is possible to oppose the death penalty as a general matter, while still endorsing its use only for perpetrators of genocide or the most egregious crimes against humanity. Israel, for example, abolished the death penalty for murder in 1953, yet retained it for perpetrators of Nazi crimes. In its sixty-year history, Israel has had occasion to execute but a single individual: Adolf Eichmann in 1962. Even in that case, a debate raged in Israel about the appropriate punishment for Eichmann, a debate that anticipated some of the controversies surrounding Saddam's execution. In his summation before the court, Israeli Attorney General and lead prosecutor, Gideon Hausner, invoked the Prophet Joel in urging the tribunal to do justice to the "blood of innocents" an appeal that appeared to conflate legal justice with religious vengeance. Martin Buber, the famous philosopher, took exception with Hausner's argument, insisting that Eichmann's execution would be a "mistake of historical dimensions." Buber argued that inasmuch as no punishment could do justice to the crime of genocide, Eichmann's execution would fail the end of retribution and would only create an illusion of expiation.
The best answer to the colloquy between Hausner and Buber came from Arendt, of all people. Although Arendt famously found fault with many aspects of the Eichmann trial, she never, it's worth remembering, called into question the appropriateness of the death penalty. But in an effort to move the debate beyond the familiar arguments about revenge versus retribution, Arendt understood Eichmann's execution in radically different terms: as a form of lustration, an act of purging, or cleansing. At the end of Eichmann in Jerusalem, she delivers her own act of judgment: "And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nationsâ¦we find that no one, that is, no member of the human race, can be expected to want to share the earth with you." Her words address Eichmann directly: not through taunts or imprecations, but in terms of reasoned justification. And her judgment issues not in the name of Jews or any particular group, nation or people, but in terms of the human race.
It is only in defense of humankind that the death penalty can be justified, Arendt suggests. When it merely defends the sensitivities of the group, the penalty does not purge, but pollutes. Saddam's execution spreads that noxious stench.
Lawrence Douglas is Professor of Law, Jurisprudence & Social Thought at Amherst College