Since When Do Prosecutors Decide the Type of Trial?

In his post, “Why Has Holder Decided to Try Khalid Sheikh Mohammed in a Civilian Court?” [h/t Instapundit], Eric Posner says:

Then what is the answer? It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.
This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.

What the hell? Since when do we allow the executive branch to decide the type of trial a defendant receives based on the quality of the evidence the executive branch decides to use? Since when do we give the executive branch any say in how trials are conducted at all?

This overturns the entire concept of a trial. The purpose of a trial is not to serve as a demonstration that politicians are doing their job protecting the people. A trial isn’t about what is good for the state! Trials serve to protect the defendant against the power of the state and to demonstrate to the people that the state is justified in imprisoning or killing the convicted.

To that end, trials are conducted by an entirely separate branch of the government. The executive branch has to play by the rules the judiciary sets. The executive branch has provided the level of evidence and follows procedures that the judiciary finds acceptable. This division of power is one of the key concepts of our form of government.

There are no checks and balances under a system in which the prosecutors in the executive branch alone decide the rules of a trial based on their own assessment of the quality of their evidence! I mean, holy fracken bleep! It is when the executive’s case is the weakest that we need a transparent jury trial!

Imagine what would happen if we decided that ordinary criminals would only get jury trials when the district attorney decided he had a slam dunk case, but if he thought the case was weak, he could try the defendant in front of a tribunal of prosecutors!

This what happens when you try to shoe horn the messy reality of warfare into civil courts. As a society, we can tolerate the harm done by individual criminals we fail to convict, but the stakes in a terrorism trial are to high so the government has to stack the deck to ensure the defendant never walks free. I hope Posner is wrong about Obama’s thinking, because letting the executive branch stack the deck to its own benefit on a case-by-case basis creates a fantastically dangerous precedent.

I’ll say it again. We may eventually wish we never caught the bastard.

7 thoughts on “Since When Do Prosecutors Decide the Type of Trial?”

  1. Posner’s error appears in this statement: “Endless detention without trial is no longer a politically viable option.”

    While the Democrats had contended that before the last election, the Obama administration has since endorsed indefinite detention without trial. In Khalid Sheikh Mohammed’s case, they have promised to keep him locked up even if he is acquitted in this proposed criminal trial.

    If captured terrorists can be held indefinitely, there is no need to try them at all. We can just hang onto them until they die of old age, and this is certainly desirable for those who retain intelligence value.

  2. My understanding is as follows:

    1. The ‘low quality’ system is for determining if someone is a combatant (or possibly a POW if, say, dealing with captured members of Saddam’s army or whatnot).

    2. The ‘high quality’ system is for determining if someone is guilty of a crime and if so what his punishment should be.

    It’s quite possible to discover someone who isn’t a combatant but is guilty of a crime. Say, for example, US troops stumble upon someone credit card scams from an Internet cafe in Pakistan. The person might not be a combatant against US forces but he can be charged with a criminal offsense. Likewise I suppose its possible for someone to be a combatant but not technically guilty of any crime (although I think the laws against ‘providing aid’ to terrorist organizations are so broad to make coming up with a hypothetical example pretty difficult).

    Is there a huge check and balances system with the ‘low quality’ system? Hell yes. Since a ‘war on terrorism’ has almost no intellectual boundaries it does open the door to the gov’t holding people forever with no real oversight. The answer of the previous administration was that they were the ‘decider’ and simply could be trusted not to make any mistakes….despite numerous and egregous evidence to the contrary. So far the current administration has put some structure on the ‘low quality’ system as well as the SCOTUS setting up some limits but I agree it leaves a lot more work if this really is going to be a war that goes on for decades.

  3. Also I have no idea how to square this post off with the previous one regarding jury selection. Shannon seems to be of two minds here. On the one hand terrorism trials are so scarey that they must be conducted behind totally closed doors with no judicial oversight and the last 2,000 years of legal thought needs to be tossed out the window.

    But here we get the usual libertarian POV regarding unchecked prosectorial power. So which is it?

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