We are confronted almost daily with braggadocio on the topic of war. Mastery of big data, we are told, is a safeguard against destruction of our civilization, a nuclear deterrent in microchip form, some say—no need for missile silos and lasers when computer denial and attack are unsheathed. Others argue that big data innovations lead us down a different path, beyond human control, and that we are being marched double-time into another stone age. New age or stone age, who knows?
What we do know is that now or later, we are destined to consider and judge more than the technologic tools of war. There will come a day when we again judge the corpus of war leaders, both winners and losers. How are we to judge the faces of war, the deciders, in the era of big data? And who among us, that remains, will sit to judge the accused?
In a future when those blamed are on public trial for unleashing the rabid dogs of war, will civilized people honor something like the Sixth Amendment criminal defendant’s right to “public trial?” If so, then what of the devilish detail—the jury? In America, we do have a Constitution to consider after all; Article III prescribes that the trial of all crimes “shall be by Jury…. ”
To date, no public jury has held the reigns of post-war justice. We had the Nuremberg Tribunal (eight judges, four prosecutors, and a slew of defense attorneys) for the elite criminal gang in WWII. America now has the Military Commissions Act to try “alien unlawful enemy combatants,” true, but the Act does not define due process for state-sponsored warfare. And the future of the International Criminal Court is said to be in question, and that’s “bad news for women.” The future of justice for “lawful” state-sponsored ringleaders, then, is unknown.
How then will the Tribunals of future warfare apply Big Data to impose public justice? What process will be followed? What questions will be asked? Will War Tribunals be limited to judges who decide law and fact, or will there be a public jury panel? If a jury is to decide, then armed with big data should the decision-pool be limited to twelve jurors, twelve-times-twelve, or beyond counting, to an infinite on-line audience, the mob?
As counterpoint to this future dilemma, we may reflect back on the old-world challenges faced by the Nuremburg Tribunal. At its inception, the Tribunal’s proof could be ticked off on a stack of three-by-five cards. Eventually, just 1,900 documents would prove key elements of the case. (See, Conot, Robert E., Justice at Nuremberg, pp. 24, 38 (1983)). The entire body of evidence, trial testimony, and decades-long struggle to render justice for Holocaust atrocities, might today be stored on a lone thumb drive.
When the guns of a future war cease, the mountains of virtual-evidence from every side will quickly exceed herculean proportions. Thumb drives will have been replaced by invisible fists squeezing out gobs of big data. Are we to presume that a small group of judges and prosecutors will sort through these oceans of big data archives as one would finger through index cards?
Now is the time for us to have the discussion. The Court of Public Opinion has already co-opted a vast swath of the judicial function—Multiple Social Media platforms dole out collateral justice, unrestrained consequences, in the blink of a lie.
Our culture is tweaked like a refresh button almost daily by decades-old social media posts. Employers hire and fire based upon silly on-line selfies. We fear future consequences from the virtual breadcrumb trail to those little mistakes of our long-forgotten past.
Is it to be expected that a socially synchronized public beaten and torn by the ravages of war will regress and allow a covey of judges and lawyers to decide the fate of war criminals?
Sooner than later, it may be judicious for us to deliberate like a jury of old, with an eye toward reaching agreement, just how to evaluate and decide future Justice at War.
What questions would you ask in a future War Tribunal?
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