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Sunday, March 7, 2010

Terminal Lack of Confidence Undermining Justice

The nation has been wrestling for years with questions regarding putative-terrorists/enemy combatants.   Do we try them as prisoners of war?  (I suggest that to even have this debate suggests strongly that they are now POWs; after all, soldiers or spies captured during declared wars on or near a battlefield did not prompt such questions.)  Where do we try them -- military court or civilian court?  And if a civilian court, where is the trial held? 
The inconsistency and now the reversals in policy on these questions are disturbing, embarassing and harmful to the nation's reputation as a country of laws first and foremost.
There seems to be an alarming lack of confidence among Justice Department decisionmakers that a civilian trial can indeed proceed.   If there is worry about the specter of a Khalid Sheikh Mohammed (hereinafter, "KSM"), who has confessed to crimes, actually being set free on a constitutional rights violation, for example, then how does one justify an indefinite detention of him (or others) before and without any trial, without raising fears that such precedent could be abused in the future to justify indefinite detentions of American citizens without a trial?  In short, if this man is so evidently guilty of heinous crimes, why does there seem to be this trepidation -- if not fear -- to proceed civilly?  Where are the "best and brightest" lining up to make a name for themselves in what could be a career-defining case?  (Counterposition:  Maybe this is supposed to be such a sure winner that there is no career upside, but plenty of room for career humiliation on the downside.) 
The longer these questions remain unanswered, the more it seems that there is a someone, at some level of our federal government, who is aware that certain facts would emerge to undermine KSM's confession.  
The central theme is emerging.   At various levels of the Justice Department and the Obama Administration (and to be fair, this was probably also the case during the Bush Administration), there appears to be someone with something to hide.   It just does not seem that the mere fear of a courtroom loss would prompt all of this maneuvering.   In short, the decisionmakers look as if they are afraid of anything and everything other than a preordained guilty verdict.
Perhaps the lack of confidence is in the abilities of the prosecutors.
Perhaps the lack of confidence is in the likelihood of the federal judges to rule for the government.
Perhaps the lack of confidence, above all, is in the evidence.   As incredible as it may seem, could KSM simply be a nut job?   Or, even worse, could he actually be innocent of any crime, or have been tortured enough to say anything? 
These would seem to be horrible questions to ponder, because of the premise that our federal government would be able to do such wrongs.   One distinguishing feature about American society is our generally widespread belief that our government and its agents are benevolent and law-abiding, and that they protect us instead of persecute us.   But the continuing delays and evident fear in proceeding make it seem as if there is a something out there which someone is trying very hard to keep hidden.  The longer we don't get the final answers, the more the suspicions and whispers will continue.
My belief:  A civilian trial should be held in the jurisdiction where the crime is determined to have been committed.   That means either New York City (Southern District of New York) or perhaps Boston, where the attackers boarded the planes.  A change of venue should be considered upon motion if there is a risk that the defendant cannot receive a fair trial; that is how our system works.   It is better to have the trial here, and take the "chance" of losing a verdict, than to try to cover up mistakes made in the past by violating time-honored procedural rules and Constitutional safeguards and weakening the legitimacy of our judicial system.    To argue otherwise, to suggest that people such as KSM absolutely must be found guilty by any means necessary, is to ignore and create the risk of tomorrow's witch-hunt, where innocents will be persecuted, tried and convicted.
Eric Dixon is an attorney in New York and New Jersey who writes on and researches various civil rights topics.  His next-door neighbor's son was killed in the September 11, 2001 attacks.    

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