Norway’s trial of Anders Behring Breivik for the mass murder of 77 people last year has not really captured the attention of National Review Online as yet, but it is provoking some anguished debates in Norway and across Europe. It is also raising some very uncomfortable questions.
The first such question is: Why should there be a trial at all — or at least a trial that treats the verdict as something in doubt? Everybody knows that Breivik murdered 77 innocent people; we all know just why he did so. His rambling paranoid web attacks on Norway’s social democrats for betraying Christian civilization were given wide publicity on the day after his rampage. Today he is not denying but rather boasting about his crimes. Nothing crucial to justice is in doubt.
Why could the court not simply hear his plea, take very brief factual evidence identifying Breivik as the perpetrator, pronounce him guilty, and then dispatch him off to anonymous obscurity for the rest of his life?
Trials with that brisk format used to take place in Britain following guilty pleas. Something like that could surely have been justified here. Indeed, it might be a moral improvement on what otherwise cannot help being a show trial.
That leads to the second question: Who benefits from a show trial? Is it the prosecution, by getting a large hearing for its case? Or the public, because it learns important lessons from it? Or the perpetrator because, however vile his actions, he looks like a lone man against the world and gains something from that impression?
Some jurists wanted a show trial in Breivik’s case because they thought it would show what a vile monster he undoubtedly is. Norway’s courtroom rules played into that desire. Unfortunately, they also played into Breivik’s calculations, which have turned out to be shrewder. As Dan Hodges — a Blairite commentator on the Daily Telegraph website who is always thoughtful and (on other topics) entertaining — makes the following observation on how the trial is unfolding:
I find its sterility demeaning. The cramped, featureless courtroom. Breivik seated casually at the table between his attorneys, looking like a man taking part in a civil custody hearing, rather than someone on trial for 77 murders.
It’s an environment that appears to be framing Breivik, not cowing or reducing him as I’d hoped. There is no banality of evil on display here. Breivik actually appears quite an imposing figure, his physicality if anything enhanced by his calm, softly spoken interventions.
In this atmosphere Breivik says things that are undoubtedly interesting. His description, for instance, of how he was surprised that many of his victims “froze” rather than attempting to escape was repellent, but it told us something surprising we did not know before. As a result, he becomes a little more interesting himself and so (as is plainly one of his aims) a little less blankly monstrous. Occasionally he even makes little jokes at which people in the courtroom laugh. They laugh — it’s a normal human reaction, hard to avoid — but it further relativizes him and his crimes.
Nothing can make Breivik sympathetic, but he will doubtless be satisfied with planting even the smallest seed of doubt about his utter wickedness or irrationality.
That is why it is so dangerous that he will apparently be allowed to bring on extreme Islamists as witnesses for his defense. In effect he is claiming justified homicide — which in this case means justified mass murder — presumably on the grounds that it is legitimate to murder people if they promote, inter alia, the immigration of extremists.
If that is not the reason for having Islamists as defense witnesses, what is? And if that is the reason, what on earth would be the state of Norwegian law if Breivik were to be acquitted on those grounds? A very remote contingency, I grant, but worth considering. For if Breivik cannot possibly be acquitted on the grounds that his 77 murders were justifiable, then there is no good reason for having these witnesses. They certainly didn’t witness anything.
The final uncomfortable question is: What punishment should Breivik receive? At present the harshest sentence available to the court is imprisonment for 21 years. In practice that might turn out to be lifetime imprisonment, either in a jail, because he is judged to be a continuing danger to the public, or in a psychiatric hospital, because he is judged to be insane. That is the very least the Norwegian people will or should accept. But is it enough? Does it fit such a monstrous crime? In the light of Norway’s comfortable prison conditions, such a penalty can hardly be called harsh.
Hodges feels frustrated at this, asking if Breivik shouldn’t simply have been shot out of hand. He is being less than half-serious here. He marshals all the right civil-rights arguments against such a course. He knows that his feelings cannot and should not be acted upon. But his instincts are expressing a serious moral point, too — namely, that some crimes are so terrible that they require a punishment that reflects that horror. They should not be relativized away, an outcome that Norway currently risks.
Oddly, very few people have suggested that the death penalty is the answer here. Jenny McCartney raises the question in order to dismiss it on the grounds — not trivial but not persuasive to me — that Breivik probably wants the death penalty so as to be a historic figure even, if only a Herostratus rather than a hero. But how many of the Nuremberg defendants became historic figures because of their executions? Except for those who were already historic figures, however disgracefully, none of them. Speer, who was sentenced to twenty years, achieved greater prominence and attracted greater interest than any of those executed into obscurity.
And why should we be concerned about what Breivik wants anyway?
Some years ago National Review and The Nation cosponsored a debate on the death penalty. The disputants included the Reverend Jesse Jackson, the late Christopher Hitchens, former New York City mayor Edward Koch, and Professor Hadley Arkes of Amherst. It was a high-quality debate with strong arguments on both sides. Jackson that night made a powerful speech opposing capital punishment on Christian grounds. But my impression is that he was impressed at the closing argument from Hadley. At any rate he gave Hadley a hug.
“We do not think that we should have to share the world with those who committed such a crime against God and man,” ended Hadley, quoting Hannah Arendt on the trial of Eichmann in Jerusalem. (I quote from memory.) He then sat down amid the kind of subdued applause that greets a powerful moral point inviting agreement rather than cheering.
Well, Norway had abolished the death penalty in the early 20th century. Following the Second World War, however, the Norwegians reintroduced it in order to have a fit and suitable punishment for the Nazis, their Norwegian allies (notably Vidkun Quisling, who had ruled Norway on Hitler’s behalf), and those who had participated in the Holocaust. They did not think that they should have to share the world with those who committed such crimes against God and man.
If the Norwegians were to reach the same decision about Breivik on the same grounds, is there anyone who would not understand? Who wants to read some day that Breivik is corresponding with the Unabomber? Or that he has smuggled out a manuscript justifying his crimes? Who now thinks that Quisling was wrongly executed?
— John O’Sullivan is editor-at-large of National Review.