Thursday, November 18, 2010

Biased Opinions - Real Trials Sometimes Result in Acquittals

I have to admit, this scares me quite a bit. Not the fact that Ahmed Ghailani was acquitted of almost all of the counts against him. That doesn't bother me, even though it seems to me that he is probably a pretty nasty person. No, what bothers me is that the fact that he was acquitted is seen as a "failure" of the civilian court system, and a justification for overturning the Constitutional protections intended to prevent the government from running amok. What is even more disturbing is the idea expressed in the article that if Ghailani had been acquitted on all counts, the government would have simply taken him into military custody. In other words, even if the trial had found Ghailani not guilty, he would not have been a free man.

There's a term that is used for proceedings in which a conviction is intended to be preordained. They are called "show trials", and the United States spent most of the twentieth century criticizing totalitarian regimes for engaging in them. Even now, the United States protests when Chinese and Iranian dissidents are tried and convicted in these sorts of sham trials. And with good reason. A show trial subverts the entire concept of justice.

"One of 285 counts is not exactly a track record for a prosecution team to be proud of," said Kirk Lippold, former commander of the U.S.S. Cole, which was attacked by al-Qaeda in 2000. "I think the administration is now in a position where they have to get serious about using military commissions. This case sends a clear and unmistakable signal about using civilian courts: It didn't work."

"I am disgusted at the total miscarriage of justice today in Manhattan's federal civilian court," said Rep. Peter T. King (R-NY), the ranking Republican on the Homeland Security Committee. "This tragic verdict demonstrates the absolute insanity of the Obama administration's decision to try al-Qaeda terrorists in civilian courts."

With due respect to Messers. Lippold and King, this sort of sentiment is dead wrong. The system worked perfectly. It just didn't give the result that these two gentlemen wanted. But an uncertain outcome is the nature of a trial. If the system is rigged so that only "acceptable" outcomes result from the process, then the system can't really be considered fair. In short, if you are deciding the verdict first, and having the trial afterwards, you are simply doing it wrong. The problem isn't that they are expressing shock and dismay over the fact that Ghailani was acquitted, but that they are expressing the opinion that an acquittal should not have been a possible outcome of the trial and the system should be changed so that it is rigged in to ensure conviction.

One might argue that holding and convicting dangerous men like Ghailani (and Khalid Sheikh Muhammed, and other Guantanamo detainees) is too important and we have to make sure that the process results in verdicts against them. But that's an argument that could be applied to any person accused of committing a crime. Holding and convicting accused serial killers is important. Should we discard Constitutional protections when prosecuting them? How about people just accused of murder? Or those who have been accused of rape? Or those who have been accused of manslaughter? And so on down the line. Once you start down this road, there will always be another crime that is just slightly less serious that isn't covered by the "enhanced" procedure designed to ensure convictions. Eventually we could very well end up applying these standards to people accused of drunk driving and other petty offenses. Either we apply the protections of the Constitution to those accused of crimes, or we may start ourselves down a fairly dark path and wind up with a criminal justice system that would make Than Shwe proud.

One might complain that Ghailani and his ilk would happily overthrow the very institutions that protect them, and that if the roles were reversed they would not bother with the niceties of trials before dispatching those they consider to be their enemies. And these contentions are completely correct. And they are also entirely irrelevant. Ghailani, Khalid Sheikh Muhammed, Osama bin Ladin, and all of the other jihadists are barbarians. We are not. At least not yet. We should be a nation that upholds the rule of law, and provides justice rather than revenge via our court system. The fact that we are fighting a barbaric enemy that does not share our values should not be seen as a justification for discarding our values. If we lose this conflict it will not be on the battlefield. While al-Quaeda and their sympathizers can cause chaos and random destruction, they cannot match the Western world militarily. This is a time when we should hold fast to our values, because this is a war of ideology, and quite frankly, our ideology is better. But it is only better if we actually show that we believe in it and are willing to live by its principles. And one of those core principles is "those accused of crimes are entitled to fair trials with appropriate protections against arbitrary action by the government".

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