Later On

A blog written for those whose interests more or less match mine.

Trials only if the verdict is known in advance

with 3 comments

Glenn Greenwald:

According to The Associated Press, Eric Holder will announce later today that Khalid Sheikh Mohammed and four other 9/11 defendants will be brought from Guantanamo to New York to stand trial, in a real criminal court, for the crimes they are accused of committing.  This is a decision I really wish I could praise, as it’s clearly both politically risky and the right thing to do.

An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks.  It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done — I expect to have an interview later today with one of those family members — and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism.  So this component of the Obama administration’s decision, standing alone, is praiseworthy indeed.

The problem is that this decision does not stand alone. Instead, it is accompanied by this:

Holder will also announce that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.

It was not immediately clear where commission-bound detainees like al-Nashiri might be sent, but a military brig in South Carolina has been high on the list of considered sites.

So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court.  Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials:  namely, those whom the Government is convinced ahead of time it can convict.  Others for whom conviction is less certain will be accorded lesser due process:  put in military commissions, to which most leading Democrats vehemently objected when created under Bush.  Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all.  It’s a rigged game of show trials.  This is a point I’ve been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different "categories" of terrorism suspects who would be treated differently based on the category into which they fell: …

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Written by Leisureguy

13 November 2009 at 12:38 pm

3 Responses

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  1. If a jury of impartial persons based on evidence presented with a competent defense provided in front of an impartial judge, finds a defendant guilty, is that a “show trial”? Does the fact that the evidence is overwhelmingly convincing (should this be the case) mean that this is a “show trial”?

    If an Attorney General determines that a civilian trial may expose important security matters that may not be exposed through an otherwise legal proceeding, should said Attorney General not choose the latter course?

    If important national security matters are at risk, is it not desirable to make judgments on how to proceed on a case by case basis?

    Just curious.


    constant reader

    13 November 2009 at 7:26 pm

  2. I don’t think the trials in Federal court will be show trials.

    The problem with “state secrets” arguments from this administration is that the last administration poisoned the well, using the “state secrets” argument simply to prevent their mistakes from being exposed. Once “Wolf!” is cried too often, the cry becomes unbelievable. In particular, the Obama Administration in general and Holder in particular have used misused the “state secrets” claim so badly that at least one Federal judge finally became infuriated.

    Some of the “state secrets” that apparently must be shielded at any cost are how the prisoners were treated—this use seems to be clearly a cover-up of wrong-doing.

    I would hold out for dropping the military commissions altogether and trying the whole lot of them in Federal court. They are not military, they are civilian terrorists, and until Bush, we always tried terrorists in court.



    14 November 2009 at 10:25 am

  3. First, my comments were directed a GG, not you. GG clearly did suggest that Federal trials resulting from Holder’s decision would be “show trials” because we would only try those in Federal Courts we were confident we could convict. Thus my first question. Bush clearly poisoned the waters and Obama appears to take advantage of the “state secrets ” privilege to not expose torture. I agree but that is another matter that I was not addressing. Regarding military commissions and the need to protect state secrets and security concerns I confess that there is much I do not know. I do believe that intelligence is an important component in the complicated world we live, and that we should not undermine legitimate intelligence efforts. I am inclined to put more trust in Obama and his colleagues than I was in Bush and his. Perhaps I put too much. But I find GG”s lack of concern about national security issues disingenuous.


    constant reader

    14 November 2009 at 8:52 pm

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