For eight years, we all had to suffer through the endless bleats of how the Bush administration (or, more commonly, the “Bush/Cheney/Haliburton administration”) had eroded our rights, had pillaged the Bill of Rights, and had in general made poopy all over the Constitution.
Now, though, it’s actually starting to happen, and the silence is deafening.
With the announcement that the 9/11 conspirators we’ve captured will be tried in civilian courts,a precedent that has huge ramifications.
Khalid Sheikh Mohammed is not an enemy of the nation, he is a man accused of several thousand counts of felony murder. He is accused of heading up a conspiracy that cost thousands of lives and billions and billions of economic harm.
He did not wage war against the United States. He helped destroy four airplanes and two buildings, damaged a third, and killed about three thousand people in the process.
And now he will answer for those crimes, just like any other criminal. Nothing about his treatment is to be considered in any way extraordinary.
A jury has yet to be seated, but both the President of the United States and the Attorney General of the United States have already assured us that these twelve men and women will vote to convict him.
The trial has yet to begin, but those two worthies have already assured us that regardless of verdict, he will never walk free.
The venue has yet to be chosen, but those two worthies have already insisted that the undetermined site will come up with a death sentence.
And this is to be considered no different from any other criminal trial.
As things stand now, defense lawyers do handsprings when public officials make pronouncements of guilt on their clients before trial. That immediately brings up the issue of a fair trial, as defendants are assured an impartial jury — and a juror who’s been told, publicly, over and over, that the defendant is guilty might have a bit of trouble giving that defendant the presumption of innocence at the beginning of the trial. Toss in the weight of the offices saying that the defendants have no such presumption, and the defense lawyers can just phone it in.
“Mr. Jones, did you hear the president and the attorney general discuss this case?”
“Well, a bit…”
“Did you hear them say that the defendants are guilty, that they will be convicted, that they will be executed, and that no matter what happens here they will never walk free?”
“I did hear things like that…”
“And with all that in mind, do you believe you can render a fair verdict in this case?”
Now, I’m not doing this in defense of Mohammed and his brethren. I wish they’d been executed years ago, with only a quiet public notice that they had been put to death and their remains buried in caskets filled with pig waste at some undisclosed location. But they’re getting their final vengeance here, striking one last violent blow against our justice system.
The Obama administration has repeatedly made it clear that these trials are to be treated as any other trial, with absolutely nothing special about them. Which means that they are establishing precedents that will carry over to other trials.
Including the abolition of the presumption of innocence, the abolition of an unbiased jury pool, the abolition of habeas corpus (“even if acquitted, they’ll never walk free”), and a host of other rights that I’m not legal scholar enough to understand.
The problem here is one I’ve argued many times before: terrorists are not criminals.
Nor are they soldiers.
They combine elements of both, but procedures set up to deal with one or the other simply won’t work.
Treating them as soldiers is problematic, as they have deliberately chosen to exclude themselves from the codes of conduct of the military. Further, they are the servants of no single state, meaning such standard wartime acts such as surrendering, retaliating, and negotiating ends to hostilities somewhat problematic. So we can’t treat them as soldiers.
Now we are having demonstrated to us just how problematic is is to treat them simply as criminals.
The solution is a hybrid one, to take elements of both approaches and build a new structure to handle them. Such as, say, a military tribunal that convenes outside the jurisdiction of civilian law and administers its own justice.
The kind of thing that the Bush administration worked on setting up in Guantanamo. The kind of thing that the Obama administration called an atrocity and a crime, and promised to shut down within a year. (We’re still waiting. This is one case where I’m glad Obama promises come with expiration dates.)
And don’t hand me the garbage that these trials are a special case. A lot of us said that for years, and were shouted down (and voted down) by people who all said that no, this wasn’t a special case. That our same system that handles jaywalkers and wife-beaters and bank robbers could handle just fine a case of a group of fanatics waging war against us.
It. Ain’t. Gonna. Work.
And we’re gonna be paying the price for this one for a long, long time.