In my previous post, I listed some (but far from all) of the practical problems presented by trying in a civil criminal court an individual (1) who was captured overseas, (2) had evidence against him collected using covert means, with (3) no chain of evidence or custody, and (4) was harshly and physically interrogated with (5) all witnesses and methods being secret.
The greatest danger posed in the trial of Khalid Sheikh Mohammed (KSM) isn’t that he will go free. The greatest danger is that he will be convicted and that during his appeals the courts will ratify all of the extraordinary measures used to capture and convict him. The great danger is that the courts will ratify the rough, inaccurate and ambiguous norms of martial law as applying to all civil criminal trials.
After a couple of decades of these court decisions reverberating throughout the legal system, we could end up living under de facto martial law.
The Constitution recognizes only two types of trials, the civil and the military. The Fifth Amendment states:
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Until the Obama administration overturned two centuries of precedence, America had two systems of justice, the civil and the military. The military system played a very small and focused role. It served rough justice in the chaos of war and in places like the open sea in which no nation’s law governed.
For over two hundred years, those captured by the military outside the civil boundaries or caught carrying out military action on US soil, were tried by military tribunals. Up until the 1950s the military used drum head trials to convict and execute those found fighting in violation of custom and international law. Pirates were often hung at sea within hours of their capture. In WWII, anyone fighting disguised as a civilian faced summary execution with the approval of just three officers.
For over two hundred years we were careful to keep a firewall between civil and martial law. We did so because civil and martial law are polar opposites. Civil law is focused on protecting the rights of the accused against the overwhelming power of the state. When there is doubt, the accused walks free. Martial law is focused on imposing a minimal order on bloody chaos. It was focused on allowing the military to complete its mission and win wars. When there is doubt, the accused is presumed guilty.
Now, Obama wants to bring martial law into a civil court room in Manhattan. In order to let a civil conviction of KSM stand, the higher courts will have to overturn almost all the current constitutional protections of the accused.
They will have to overturn the requirement for Miranda warnings. They will have to overturn the Fifth Amendment protection against self incrimination. They will have to overturn the right to face one’s accusers and to examine all evidence and evidence gathering methods.
Even if the courts throw out his conviction, the government will never allow him to go free, so we will toss out protection against double jeopardy if they try to convict with a military tribunal, and toss out the right of no imprisonment without trial if they don’t.
Our system of justice relies on precedent and equality of procedure. The same rules apply to every civil trail. We can’t say that it’s okay to deny the right against self-incrimination in one person’s trial while saying it’s okay in another. If the courts overturn the rights of one individual accused, it must overturn the rights of all of them.
Nothing good will come of this trial.
If it is conducted outside the bounds of normal civil law, it will be nothing but a corrupt show trial whose outcome was preordained by politicians. Instead of showing the world that America is a land of laws in which even our enemies receive fair treatment, it will show the world the opposite.
If it is conducted within the bounds of normal civil law, then it will force the courts to choose between letting a mass murdering terrorist walk free and setting dangerous legal precedents that will undermine the basic civil rights of all Americans.
Obama has unleashed something in America far, far more dangerous than any excesses Bush might have committed. He has taken all the horrible compromises we must make in war and driven them into the heart of the civil legal system. If the courts do not set Khalid Sheikh Mohammed free, the cancer of martial law will metastasize into the entire justice system.
We may eventually wish we had never caught the bastard at all.