Saturday, November 14, 2009

Rogue Justice

Normally, I would applaud the Obama administration's decision to try Khalid Sheik Mohammed in a New York federal court. Not only does that decision display confidence in the American legal system but it also changes the war on terrorism to a far more logical and sustainable criminal matter. Normally, all this would be a step in the right direction.

Except that it's not. Looking at the decision--decisions, actually, since multiple defendants and legal venues are in play--Glen Greenwald points out that Obama has abandoned the idea of equal justice under law in favor of adapting the legal system to ensure conviction based on differing levels of evidence. "Show trials," he calls them.

I learned all about show trials early in life. My elementary education in the 1950's lost few opportunities to remind that evil Communists staged show trials before executing anyone who challenged the Communist Party rule. America, we were told, was different, a place where all were protected by the rule of law and all Americans could live safe in the knowledge that we would never be hauled into a Kafkaesque darkness from which we would never emerge.

That belief was not entirely unfounded. America's founders experienced the arbitrary rule of a monarch above the law and wrote a Constitution that specifically barred those practices. At first, equal justice under law was for all practical purposes guaranteed only for white male property-owners but later expanded to encompass (in word if not deed) all Americans. As a nation we celebrate our commitment to the rule of law as a proud achievement.

Which is all the more reason to lament the nation's willingness to abandon that principle in times of danger. Hearing the hue and cry over the danger of prosecuting terror suspects in civilian courts leaves me wondering why America is so eternally afraid. Apparently we have no confidence in our domestic police, prosecutors and foreign intelligence to identify and disrupt plotters. We seem to believe that Terror (with a capital T for trouble) is beyond our capability as a free and open society.

This is the same so-called logic I've heard all my life; namely, that some threats are just so dangerous that extraordinary measures are necessary. From the "unitary executive" to show trials, our fears encourage us to discard the ideals that we thought we treasured.


A couple other articles that address the same subject but did not fit easily into my stream of thought for this post are also worth reading if you want to pursue this subject even further.

ProPublicadetails competition between civilian and military prosecutors over jurisdiction and procedure even as they bargain with defendants to find something that will create a guilty plea and verdict.

Dahlia Lithwick at Slate follows oral arguments before the Canadian Supreme Court in the case of Canadian citizen Omar Khadr, captured at age 15 in Afghanistan and now headed for trial before a military commission.



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