The recent debate about whether the trial of Khalid Sheikh Mohammed should be held in New York City has overshadowed the question of whether the trial should even be held by a federal criminal court rather than by a military tribunal. The obvious answer, as indicated by a recent exchange between Senator Charles Grassley (R-IA) and Attorney General Eric Holder, is that holding the trial in federal court will make a mockery of our justice system.
From the transcription provided by Jim Geraghty:
Sen. Charles Grassley, R-Iowa: “I don’t think you can say that failure to convict is not an option, when we have juries in this country.”
Attorney General Eric Holder: I have thought about that possibility. Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country…
Grassley: My understanding is that if for some reason he’s not convicted, or a judge lets him off on a technicality, he’ll be an enemy combatant, so you’re right back where you started.
Ed Morrissey has the best and most succinct argument for why the trial shouldn’t be held in federal court system:
Not only will we be right back where we started, it will expose the federal trial as nothing more than a show trial. Show trials are conducted by despots and dictators to give only a thin veneer of legality to political detentions and executions. If the state isn’t prepared to abide by the decision of the court, including dismissals and acquittals, then the use of the trial system is worse than useless. It demeans the federal system needed for Americans to seek unbiased justice.
What do you think? Should the show trial commence and should it be held in New York City?
November 19th, 2009 | 9:26 am
Um, a military court is just as vulnerable to the issue of acquittal/no acquittal, so I don’t see how this talking point is anything other than a talking point.
November 19th, 2009 | 9:44 am
Liam Um, a military court is just as vulnerable to the issue of acquittal/no acquittal,. . .
A military tribunal is distinct in a number of ways that make it different from a criminal court proceeding. For starters, the tribunal can begin with the assumption of guilt rather than the presumption of innocence. It can simply decide what type of punishment to mete out for the crime, rather than to go through the motions of assuming that the guilt of the accused may be in doubt.
November 19th, 2009 | 9:53 am
Liam,
Actually, it seems to me that a military tribunal is far less likely to end in an acquittal or on a legal technicality than a civilian trial because, for one thing, different rules apply if the defendants are treated as enemy combatants rather than citizens. Different laws and technical procedures are at play.
A military trial would also not involve a jury composed of average citizens unschooled in law. It is easier to reach a hung jury or an acquittal in a civilian court because average people can be swayed more easily by a skilled defense attorney when they have no background in law to sort out the complexities of the case.
Also certain military secrets may be purposely withheld in a civilian court and thus may not be presented to a civilian jury for consideration. The prosecution may try to build a case without leaking top secret information because they hope to gain conviction without endangering the nations security. Without that information the jury may see some wiggle room to allow an acquittal or a lesser sentence. In a military setting this information could be openly presented without fear of compromising security.
And then there is the pre-trial publicity and the media frenzy surrounding the civilian court proceedings, which will make it difficult to see this as anything less than a “circus” no matter what the outcome is. It could end in a mistrial much easier than with a military tribunal…
November 19th, 2009 | 10:56 am
Among the many problems created by holding a trial in New York City is the problem of finding a jury. Where will you find a citizen who has not heard of 9/11 and formed an opinion about the event? Especially with that gaping hole still evident in lower Manhattan.
A defendant is entitled to a jury of his peers. Finding persons qualifying as peers of a terrorist murderer is certainly an intriguing requirement in this case, but not one to be taken lightly. Convictions have been overturned because such things as the racial makeup or the age of the jurors was considered to have prevented a defendant from receiving a fair trial.
Since we know that KSM was waterboarded 183 times, and the President has decreed the practice as “torture,” what will a jury make of any evidence so obtained? Can any evidence even be presented, or is it all “fruit of the poisonous tree?”
Then there is the issue of Miranda warnings. Can a case even be brought in a civilian court since the precedents are clear on the issues of right to counsel and right against self-incrimination? If the case was dismissed on these grounds a writ of habeas corpus would surely follow. Then what?
What is discouraging is that the men who made the decision to proceed in civilian court are the products of elite law schools and, in one instance, the Student Editor of the nation’s most prestigious Law Review. You have to wonder how keen is their grasp of the rudiments of their profession.
November 19th, 2009 | 12:34 pm
So, what you’re sayin’ is that you prefer an even more rigged show trial (military commission).
Interesting.
November 19th, 2009 | 1:00 pm
Liam, a military tribunal at least provides due process without the circus atmosphere or danger to the nation’s security. I don’t know how much more of a show trial you can get when the Attorney General guarantees conviction and promises not to release the individual no matter what the outcome. Sounds Stalinesque to me.
November 19th, 2009 | 1:50 pm
It is a dangerous decision for the reasons stated.
Secondly, if the judge feels compelled to ensure a conviction, and for those very reasons runs a little roughshod over the defendant’s rights, it will create a dangerous precedent for future defendants.
November 19th, 2009 | 4:07 pm
Well, if the military commission route is more secure, it would seem it is more rigged, and thus even more of a show trial.
This is merely to point out that using the “show trial” metaphor sheds no light on the issues whatsoever, but is self-contradicted.
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