Good Friday, 2008
The trials of Jesus that led to his execution were, if the Gospel accounts are credible, miscarriages of justice. But they were trials, not a lynching or assassination. Exactly how unfair were they? How do they compare to another set of trials that have come under heavy criticism, those at Guantanamo Bay? Seeing as the Administration responsible for them advertises its allegiance to the person of Pilate’s victim, if not to his teaching.
Standards of justice change. I’m not competent to apply the contemporary ones, in one sense the most appropriate; but it’s still illuminating to hold these trials up to our benchmarks. A reasonable list of 22 criteria for a fair trial was published in 2000 by an American legal NGO, Human Rights First.
The rights are not of equal importance and some of them are anachronistic, but the list is a professional modern attempt, dating from just before 9/11, to capture what we mean today by a fair trial. I’ve renumbered for my own convenience.
Table 1: Human Rights First’s criteria for a Fair TrialA. Pre-trial rights
1 Prohibition of arbitrary arrest and detention
2 Right to know the reasons for arrest
3 Right to legal counsel
4 Right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention
5 Prohibition of torture and the right to humane conditions during pre-trial detention
6 Prohibition of incommunicado detention
B. The hearing
7 Equal access to, and equality before, the courts
8 Fair hearing (equality of arms)
9 Right to a public hearing
10 A competent, independent and impartial tribunal established by law
11 Presumption of innocence
12 Prompt notice of the nature and cause of criminal charges
13 Adequate time and facilities for the preparation of a defense
14 Trial without undue delay
15 Right to defend oneself in person or through legal counsel
16 Right to examine witnesses
17 Right to an interpreter
18 Prohibition of self- incrimination
19 Prohibition of retroactive application of criminal laws
20 Prohibition of double jeopardy
C. Post-trial rights
21 Right to appeal
22 Right to compensation for miscarriage of justice.
Let’s try to apply them to the Gospel accounts. These report on two distinct trials of the radical peripatetic rabbi from Nazareth. He was arrested by a Temple posse, taken before the Sanhedrin, and charged with the religious crime of blasphemy, viz. falsely claiming to be the Messiah. The charge was true, unless you think as Christians do that the claim was accurate. But the Sanhedrin no longer had jurisdiction to carry out the death penalty, or thought it imprudent to do so. So the Temple leadership sent Jesus to Pilate for a second trial for sedition. Pilate had clear jurisdiction as Roman procurator. The charge was false, but Pilate had Jesus executed anyway out of fear or calculation.
There are problems with this account. The evangelists, especially John, were not unbiased neutrals: they probably tilted the blame away from Pilate and on to the Temple. By their own reckoning, the disciples had to take cover (eg. Peter), weren’t in a good position to observe events, and were uneducated men. But the evangelists were writing about fairly recent and traumatic events, in the context of sharp conflicts in the new sect over the issue of Jews and Gentiles. Many in their audience would have known about Roman trials and Jewish religious courts, so the accounts won’t be fantastic. It’s very unlikely that Jesus’ trials were any more irregular than they report. For the comparison, we have to take the accounts at face value.
Here’s my table. I’ve split the tribunals item into two parts – 10a for the formal aspect of proper constitution and jurisdiction, 10b for the psychological dimension of bias and independence. The scores are even better if you leave out the anachronisms.
Table 2: The two trials of Jesus (I: Caiaphas II: Pilate)A. Pre-trial
1 No arbitrary arrest and detention
I: Yes II:Yes
2 Reasons for arrest
I: Not recorded II: Yes
3 Legal counsel
I: No (anachronism) II: No (anachronism)
4 Habeas corpus
I: Not applicable II Not applicable (trials precipitate)
5 No torture or abuse in detention
I: Yes II: Yes (Flogging post-conviction)
6 No incommunicado detention
I: Not applicable II: Not applicable (Trials precipitate)
B. The hearing
7 Equality before the courts
I: Yes II: No (Roman citizens had more rights than Jews)
8 Equality of arms
I: No II: No
9 Public hearing
I: Yes? II: Yes
10a Lawful and competent tribunal
I: Yes? (Jurisdiction unclear) II: Yes
10b Independent and impartial tribunal
I: No II: No (both judges biased)
11 Presumption of innocence
I: No (anachronism) II: No (anachronism)
12 Notice of charges
I: No II: No (Trials precipitate)
13 Facilities for preparing a defense
I: No (anachronism) II: No (anachronism)
14 Trial without undue delay
I: Yes II: Yes (Trials precipitate)
15 Right to defend oneself
I: Yes II: Yes
16 Right to examine witnesses
I: Yes II: Yes
17 Right to an interpreter
I: not applicable II: Yes? (Interpreter not mentioned, but fluent dialogue with Pilate)
18 Prohibition of self- incrimination
I: No II: No
19 Prohibition of retroactive criminal laws
I: Yes? (Messianic claim new before Sanhedrin) II: Yes
20 No double jeopardy
I: Yes II: Yes? (Different charges)
C. Post-trial rights
21 Right to appeal
I: No (anachronism) II: No (anachronism) (Only for Roman citizens)
22 Compensation for miscarriages
I: No (anachronism) II: No (anachronism)
Scores: Caiaphas: 13.5 / 23 Pilate: 14 / 23
Scoring: Yes, Yes?, Not applicable=1, No=0, not recorded=0.5
The GITMO trials cover two technically different procedures: the Combatant Status Review Tribunals (CSRTs) from 2004 and the Military Commissions from 2006. But for practical purposes they are clones. For expert analyses, see Human Rights Watch and Amnesty International
The tribunals were set up a long time after the arrests, and hardly any trials have taken place under the military commissions.
Table 3: Guantanamo tribunalsA. Pre-trial
1 No arbitrary arrest and detention
Partly (arrests in combat lawful, others not)
2 Reasons for arrest
No?
3 Legal counsel
Partly (military counsel assigned, civilian choice restricted, delayed)
4 Habeas corpus
No
5 No torture or abuse in detention
No
6 No incommunicado detention
No
B. The hearing
7 Equality before the courts
No (American citizens have more rights)
8 Equality of arms
No (see 3, 16).
9 Public hearing
No
10a Lawful and competent tribunal
Yes? (but set up ex post)
10b Independent and impartial tribunal
No (serving military judges, ad hoc procedure)
11 Presumption of innocence
No
12 Notice of charges
Yes
13 Facilities for preparing a defense
Partly (see 3, 16)
14 Trial without undue delay
No (trials very delayed)
15 Right to defend oneself
Yes?
16 Right to examine witnesses
No (much evidence classified, hearsay)
17 Right to an interpreter
Yes?
18 Prohibition of self- incrimination
No
19 Prohibition of retroactive criminal laws
No (substantive and procedural law created ex post)
20 No double jeopardy
No (no limitation on new detention)
C. Post-trial rights
21 Right to appeal
Partial (not to a civilian court)
22 Compensation for miscarriages
No
Score: 6 / 23
Scoring: Yes, Yes? =1, No, No?=0, Partly=0.5
On my reckoning, the GITMO tribunals are less then half as fair as those of Jesus. And those were miscarriages of justice. Trials are like jet engines: one flaw and you are in serious trouble – and a perfect score still doesn’t guarantee that nothing will go wrong from honest mistakes. The GITMO ones are trials in the sense of Vyshinsky.
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Objection from a worthy Christian person
It is in extremely bad taste, even impious, to use the Passion of Our Lord on Good Friday to make political points. You should be ashamed of yourself .
I should be ashamed of myself on Good Friday, but not for that reason. As I see it Christians are supposed to enter, as in the great music of Schütz, Bach, and Handel and the art of Grünewald , into the drama and relive it each year, empathising with all the participants. We have to see ourselves therefore as the false judges and executioners as well as the ineffectual disciples; and consider how far our ideas, actions and feelings in fact coincide with theirs. The answer is usually that we are largely on the side of the bad guys.
Objection from a more learned Christian person
It is inappropriate for a Christian to treat the Passion as an ordinary historical event. You should se it not as a tragedy but a fulfilment, the savage birth of a new covenant, an eschatological singularity: and the redemption of all humanity was both made necessary and enabled by the sins of Judas, Caiaphas, Pilate, and the mob. Theirs was the true “felix culpa” rather than that of a mythical Adam. You cannot blame them in the ordinary way.
True: but look again at the Grünewald (in the flesh it’s even more impressive — it’s a huge, in-your-face, SUV-size altarpiece; the Christ is more than life-size). On his large canvas, Grünewald strips the supporting figures down to three. The impassive figure of John the Baptist tells us to think about what is represented; the shattered faces of Mary and the other John invite us to feel in human terms. Both human and theological readings are needed. This innocent death is still a “culpa”. It only becomes “felix” if we accept the invitation to be changed by it. But if we don’t, if we join Pilate every day in the White House and the DOJ and the cellars of Guantanamo and Bagram, may the Lord have mercy on our souls.
