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Guilty Until Proven Guilty: Threatening the Presumption of Innocence
Liberty versus security, that initial heated debate over the war on terror, is again rearing its head with much bravado, nowhere more so than in our nation's courtrooms where American justice continues to pay the price.
Over the course of the past nine years, in the name of counterterrorism, there has been a notable and unappreciated development inside the criminal justice system that is cause for alarm: a growing, if often veiled, intolerance for basic guarantees of justice in cases where "national security" is invoked. This trend leaves the nation's justice system at risk.
Last weekend, as the Washington Post reported, Obama administration officials inadvertently called attention to this development in a non-decision over whether, where, and how to bring Khalid Sheikh Mohammed to trial. Usually referred to only by his initials, KSM was the operational mastermind behind the attacks of September 11, 2001. Captured in Pakistan in 2003, and transferred to the American prison at Guantanamo Bay in 2006, he is the highest ranking al-Qaeda member taken into U.S. custody since 9/11.
At issue is whether the Obama administration will try this close associate of Osama bin Laden via a military commission at Guantanamo or a jury of civilians in federal court in lower Manhattan or elsewhere. In a recent news conference, Attorney General Eric Holder mentioned that the decision was close. The response from New York's politicians -- Democratic Senator Charles Schumer, Republican Representative Peter King, and even Governor-elect Andrew Cuomo -- was prompt. There would, they insisted, be no 9/11 trial in New York City. At week's end, according to the Post, unidentified administration officials were backpedaling fast, saying that KSM would likely "remain in military detention without trial for the foreseeable future."
Since the moment a year ago when Holder first announced the administration's decision to try KSM in Manhattan (and four other Guantanamo detainees in federal courts), the fierce and growing opposition to such trials has focused mainly on issues of cost and security. It was claimed, in particular, that a trial of KSM would demand so much security that it would impede business in Manhattan, while putting a cost burden on New York City which could not be borne without federal aid. Behind such seemingly practical issues, though, lies a deeper current of opposition based on the fear of potential acquittal, the single unacceptable outcome for a trial in which terrorism is the charge.
This Wednesday's stunning acquittal of Guantanamo detainee Ahmed Khalfan Ghailani on all but one of 284 counts by a jury in a federal courtroom in Manhattan was the first sign in years that jurors felt confident enough to utter the word "acquittal" inside an American courtroom in a terror trial. (He may still get a life sentence for the single charge on which he was found guilty.) It was also the first time a jury had not been cowed by the notion that to be accused of terrorism is tantamount to being guilty. This verdict probably ensures that the Obama administration will never bring KSM before a jury of American civilians.
I've been following terrorism cases, both in civilian courts and at Guantanamo, for years and it would be easy enough for me to go off on a jag about the need to prove that civilian courts can try terrorists (without fear of a terrorist attack). Or I could write about how indefinite detention, a concept which lies outside the accepted norms of American civilian and military law, could take us down a path leading to the eradication of civil liberties on a far wider scale.
I could recite -- yet again -- all the ways in which transparency should be a key to such trials, and how healing it is for victims to be able to observe a trial in process. I could reassure you about how KSM's guilt is remarkably well-documented and how he might get what so many seem to want for terrorists, and what, as he's made completely clear, KSM wants for himself: execution.
All of that is important. But with the Ghailani verdict and the administration's recent non-decision over what to do with KSM as our guide, we should really be looking at something even more basic to our system: the presumption of innocence. It's clear that the Obama administration is now shying away from its earlier inclination to bring key terror suspects into civilian courts out of fear that the political backlash from a decision to try KSM in Manhattan will prove disastrous, and that the ongoing national hysteria over national security, easy to trigger and hard to calm, will be ratcheted up by the thought of acquittal, the 800-pound gorilla in the room when it comes to terrorism trials.
A Conviction Rate Approaching 100%
Some of us who study terrorism trials see in this a particular dilemma for American justice. The Department of Justice and those who have supported civilian trials for terrorism suspects repeatedly try to bolster their case by playing up the spotless conviction record of federal courts, with profligate use of the word "success." In this context, success never refers to the system's theoretical skill when it comes to weeding out wrongly charged individuals -- or those who used to be called "the innocent" -- only to convictions.
The political debate over closing Guantanamo has put special emphasis on this definition of success. After all, the military courts at that prison, which in all these years have barely gotten off the ground, have had few convictions and are therefore less successful, many argue, than the federal ones. There, on terrorism cases, a near-90% conviction rate is the norm, if you include the penny-ante stuff, and on high profile cases nearly 100%. In an effort to bring the Guantanamo trials to the United States, liberals and progressives, who might otherwise have questioned the use of "success" as a synonym for "conviction," have signed on definitionally speaking.
Not surprisingly, then, when in November 2009 Attorney General Holder went before the Senate Judiciary Committee to defend his decision to try KSM in New York, he insisted that "failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result." KSM's guaranteed fate, he implied, would be death. As he emphasized when he announced his decision for the Manhattan trial, "I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."
Holder's confidence a year ago was well-based in fact. Not only would KSM be found guilty in a federal trial, but those courts have a conviction rate in such cases that would be the envy of prosecutors anywhere. Nearly everyone accused of terrorism since 9/11 has, in fact, been convicted, even the weak cases, even when cases go to trial rather than ending in plea bargains.
A year later, Holder's hand should have been strengthened, since the record remains remarkably unblemished when it comes to convictions. Since he announced his decision on KSM, the New York City federal courts have successfully tried a number of high-profile terrorism cases. They have gotten convictions in the jury trials of Aafia Siddiqui (an American-educated Pakistani scientist found guilty of intending to kill her American interrogators in Afghanistan and sentenced to 86 years in prison), the JFK airport plotters, and the Bronx synagogue plotters, all of whom are awaiting their sentencing hearings.
This is the context in which untold numbers of Americans are worrying that KSM or others will be set free in federal court. Foreigners and U.S. citizens alike have been convicted in every terror case of any possible significance brought into a civilian court. With or without juries, via full trials or plea bargains, until the Ghailani case (as close to an acquittal as we are likely to see), the outcome has always been the same: guilty.
The Presumption of Guilt
Human rights groups, civil libertarians, and those of us who opposed the Bush Justice Department's disdain for the role of the federal courts in trying individuals once labeled "enemy combatants" have championed the push to bring the Guantanamo detainees to federal court. As it happened, most Americans did not. Many evidently assume that federal court equals a higher shot at acquittal (and greater odds of terrorist acts to free the prisoner). Despite conviction after conviction, a storm of political and media criticism has played up the strange idea that the most significant terrorist the U.S. has ever had in custody would somehow beat the rap against him. Although it is increasingly politically incorrect to insist on this point, in the American system of justice, a trial -- even in the context of terrorism -- should not, in fact, have a foreordained verdict. That verdict should not be known in advance, nor should it, in essence, need to be announced by the Attorney General before the trial begins. A jury should consider all the facts that the law allows to be presented to them in the context of the presumption of innocence; and those 12 jurors should come up with their own determination of guilt or innocence.
In the case of KSM, the courts would confront a figure whose role in terrorist attacks on U.S. targets is known and recognized around the world. And yet, even with this, trust in the system is so broken that fear of acquittal trumps all else -- despite the fact that, in case after case where, unlike 9/11, no attack came about, even where an FBI informant seemed to be doing much of the planning, convictions have still been the rule.
Had there been a full-scale acquittal over the past nine years, especially in one of the terror cases that look suspiciously like cases of entrapment, the system would be stronger for it. A candidate for such a fate would certainly have been one or more of the minor defendants in the Bronx synagogue bomb plot case this past summer. There, an FBI sting operation led four men to place what they thought were bombs at a synagogue and a Jewish community center in Riverdale, New York, and to purchase an inoperable surface-to-air Stinger missile to fire at airplanes at Stewart Air Base in Newburgh, New York.
Despite allegations of FBI entrapment, an entrapment defense failed, even though the predisposition of the lead defendant in the case, James Cromitie, was towards anti-Semitism rather than jihadist violence -- a subject the FBI informant claimed to know about. However, even the most peripheral players in this hapless "plot," one of whom seemed at best only dimly aware of what was going on, were convicted. Here was yet another recent moment when a chance to distinguish between guilt and innocence in a terrorism case was thrown away.
Since September 12, 2001, Americans have been systematically cowed to a degree that is hard to grasp, and the justice system in this country has in no way been inoculated from this virus. If you need a measure of which way the currents of politics are running today, start with the political calculation that the Obama administration has had to make when it comes to the trial of KSM, which has only grown that much more difficult in the wake of the Ghailani verdict.
So, too, for those of us who favor civilian trials. How do we really feel about having been put in a position where, to defend the merits of the system of justice, we feel compelled to equate certain conviction with the notion of success?
The deepest principle of American justice is being tested, right now in Washington, in lower Manhattan in the wake of the Ghailani verdict, and elsewhere. With terrorism trials, the more serious they get, the more the presumption of innocence seems to lie at the mercy of politics.
- Posted in
30 Comments so far
Show All"Aafia Siddiqui (an American-educated Pakistani scientist found guilty of intending to kill her American interrogators in Afghanistan and sentenced to 86 years in prison)"
Since when is sheer intent a crime?
Recall also that one of America's alleged purposes in occupying Afghanistan was to rescue Muslim women from an unacceptable form of law. In Ms. Siddiqui's case it'll have to be done all over again!
Correction, that was a preposterous, middle-American, chivalrous =justification= for the killing of Taliban. This country did not go on any religious mission to rescue Muslim women from their religious law.
Trylon
There is an exhaustive entry on Ms. Siddiqui in wiki. Worth a look. There was (allegedly) more than sheer intent involved, although the truth concerning what actually happened is shrouded in a thick cloud of murk. Contrary testimony, etc.
Project Salam is a cause devoted to researching and documenting the likelihood that the United States Justice Department's post -9-11 terrorism- related prosecutions and convictions have included a significant number of Muslim U.S. citizens who were in fact innocent of any crime.
www.projectsalam.org
"Usually referred to only by his initials, KSM was the operational mastermind behind the attacks of September 11, 2001."
No, Karen Greenberg, KSM was [is] the ALLEGED operational mastermind behind the attacks of September 11, 2001." He is innocent until proved guilty and ALLEGED is the necessary word.
Yeah, after being waterboarded 125 times, if I weren't dead, I'd admit to almost anything too.
And that brings up the matter of who masterminded 9-11, and we've gone into that much on this CD site. Unequivocably, according to the evidence gathered and available, it was not Bin Laden or KSM or Alfred E. Newman who were the masterminds.
All this backing and filling by Holder and Obama and all of them is because they know that.
What a travesty of lies and more lies our nation has become. The greatest act of TREASON was committed by some of us on 9-11. One day, the TRUTH will will out.
Sooner, rather than later, I hope. But let's face it, the MSM would bypass it and chatter about some tidbit regarding Prince William and his Bride-to-be instead.
Maybe Georgie W. will slip up on his book tour. One can hope.
/cm
The fact that 911 was an inside job by some of our treasonous,government officials is the story of the century and proven beyond a shadow of a doubt, yet hardly anyone including Amy Goodman, wants to touch this evil treason and the murder of several thousand American citizens, with a ten foot pole! Also, another horrible lie that is also another proven fact of 911 is that many more have died and are dying from breathing the air that they were told by their government was safe. O.J Simpson murdered two people and it was non stop news 24/7 ad nauseum, but thousands of our fellow citizens get murdered and hardly a peep other than the net. Miggy, whats wrong with this picture?
Good answer Miggy. That's what I thought. They all need to be brought down and I hope sooner than later.
The author wrote: "KSM was the mastermind behind [9/11]".
Then, she wrote: "we should really be looking at something even more basic to our system: the presumption of innocence"
_______________________*
How can this clown conclude that KSM "was the mastermind" before there is even a kangaroo trial, yet, she flops her lips about "the presumption of innocence"?
First of all, there is ZERO evidence that KSM or any other Muslim was involved in the events of 9/11/01: We have a jumbo plane squeezing through a peephole at the Pentagon, leaving ZERO wreckage and ZERO body parts. A plane crashes onto a grassy field, leaving ZERO wreckage and ZERO body parts. WTC 7 falls, although it wasn't hit by a plane, and was not on fire.
TO ASSUME THAT MUSLIMS ARE RESPONSIBLE FOR 9/11 IS IGNORANT, RACIST, AND DANGEROUS.
I agree with everything that you said. I must offer this, however; if we are allowed to support a foreign regime that puts us in jeopardy, and must kowtow to everything that that foreign entity dictates to us against our own best interests, we must, at some point abandon that foreign entity.
Unless that foreign entity controls both of your houses of Congress, and over 99% of your politicians through almost total MEDIA CONTROL.
O, god. Who doesn't know that almost every word "our" psychopathic government utters or writes is a carefully crafted lie??
True, but look on the bright side: we know that we cannot believe anything we are told by our so called government so that makes them guilty until proven innocent, just like the so called terrorists in Gitmo. Too bad we cannot make a citizens arrest of our lying government officials and subject them to water boarding, then we may get some truth and a change we can believe in; especially Bush, Cheney,Yoo, Bolton,ect. ( too many to name ) and the rest of the these people who claim water boarding is not torture.
Bottom line.
If this corrupt corporate pseudo-government could somehow, inexplicably, be brought to the point where they actually believed in (dare I say, defended!) the rights Pseudo-guaranteed in the Constitution of the United States of America, there would be no need for any of this strategizing and conceptualizing of blatant bullshit!
All of this maneuvering for "success" is further proof that this nation is rotten and replete with the worms of pretentiousness.
It is impossible to demand habeas corpus when "the body" has been incinerated in order to cook the books at the request of those who have sworn to uphold the Lie.
"Freedom's just another word for nothing left to lose." ("Me and Bobby McGee")
The local honcho of the TSA in San Diego last week went so far as to state that "the 4th amendment gives him the right to feel up your balls." I am not making this up. The Bill of Rights, of course, had nothing to do with giving power to the government, but was instituted to protect citizens against government overreaching. And if feeling up your balls isn't overreaching, what is?
Not to split short 'n curly hairs, but I would characterize "feeling up your balls" as UNDERREACHING.
Article fails to mention that Oilybomber himself publicly promised that KSM would be convicted.
I believe that may be another violation ( equal protection clause?) of the Constitution and another impeachable offense.
And it is so prejudicial that it should make the case legally untryable anywhere in the USA or under USA jurisdiction.
Can we stop talking about terrorism and stuff, it's depressing. Let's talk about the wonderful royal wedding for the next godawful year. I feel better already.
9/11 was an inside job.
George Bush _did_ need some kind of "event" to "save" us from in order to save what, up until then, was a failing pResidency. He needed an excuse to invade Iraq, but he couldn't just go to Congress and tell them he wanted to invade, he needed an excuse, so he made one up.
I feel _so_ much safer, thanks to all of George's crimes.
"KSM was the operational mastermind behind the attacks of 9/11" really? He had a fair trial somewhere and this is the verdict reached by a jury of his peers? do tell.
Khalid Sheikh Mohammed was waterboarded183 times. Tough cookie to break. so yeah he confessed to everything. in Mike Lukovitch's memorable cartoon he is shown saying "...and when I was managing the Cinncinatti Reds I bet on my own team"
Aafia Siddiqui is a very different case. This young woman was kidnapped by u.s./Pakistan dudes, and hidden in Bagram for 5 years. that's what she says, and it was at Bagram that she finally surfaced. the u.s. denies this, but offers no other explanation. when in doubt, believe the accused. Because the u.s. has an unequalled record of telling lies about so called "terror suspects".
The story concocted to charge, try and convict Aafia is a pitifully transparent fabrication. The woman is innocent.
Ties to sl Qaeda? well hell yes who doesn't have those?
And then there are the stories about her three children
I do not see any way for justice to return to this country until the capitalist elite junta is removed from power.
Abuelo, I certainly agree with your analysis of this deeply flawed article and shudder to think that a law professor could have written it, and supposedly in defense of civil liberties. My only explanation is that it was heavily edited by someone with an agenda different than the author's or else a total incompetent.
As for the trend to lock them up before trial, I am ashamed to note that my fellow Washingtonians, (State thereof) by a very large margin voted in indefinite detention in the election just two weeks ago. Only about 15% of us were willing to say 'no' to this invidious encroachment on our rights. Somehow it seems even worse when we are doing it to ourselves and not just acquiescing to our selected lawmakers' stripping away our rights.
Eeent! "KSM was the operational mastermind behind the attacks of September 11, "
False premise.
"KSM was the operational mastermind behind the attacks of September 11, 2001. Captured in Pakistan in 2003, and transferred to the American prison at Guantanamo Bay in 2006, he is the highest ranking al-Qaeda member taken into U.S. custody since 9/11."
What evidence shows that KSM had anything whatsoever to do with the events of 9/11? How did he get the U.S. air defense system to stand down on that day? In what way did he or his associates, if any, plant the thermate based incendiary devices which brought down the three skyscrapers into their own footprints? How did KSM cause any evidence of the supposed plane that hit the Pentagon to evaporate? There are batteries of the most sophisticated anti aircraft missiles in the world surrounding the Pentagon. How did KSM prevent their use on 9/11?
The presumption of innocence is for those who can afford it, like OJ Simpson. For the rest of us there is the guilty plea.
I saw you on Democracy Now! last week. I watch Amy and Juan every day, but they are way off base on the 9/11 issue and you, Ms. Greenberg, were one of the weakest and most compromised guests I have ever seen on Amy's program.
My heartfelt approval to all the posters (indeed all) who have exposed the lie at the core of this article. One day we will prevail, and history will prove us right.
Bring America Back !!!!
**I'll give you a measuring stick, Karen: exactly
how many times shall we waterboard you before you admit
to masterminding 9/11 ???/ 25 ? 50? 200 as in the case
of KSM ??
**What is it you do not understand about torturing a Patsy
into submission and admitting to anything the Torturers
want and guide them into ???? Talk about predisposed Guilt !!
**A year ago The WAPO convicted a ripe Patsy named
Igmar Guadique in the alleged murder of Chandra Levy.
A Kangaroo Court is now filling in the pieces of the
official diagram laid down by WAPO ! The objectives
being to absolve the DC Police for blowing the case,
and for Gary Condit to spew forth nonsense on how
innocent was his Affair with Chandra !!
**The original FBI Patsy on Anthrax sued them and won
a convincing settlement, ; so they came up with an
alternative Patsy who shortly thereafter became dead
of an acute case of "suicide"===dead men tell no tales,
nor do they bring any successful lawsuits.
**Feds are experts at coming up with Patsies for most
any case==and this piece makes the correct point that
we Sheeples make no attempt at keeping the Patsies
out of the US Judicial System. We dont even try.
Although others have touched on it, Karen Greenberg's odd assertion is quite remarkable in an article lamenting the extinction of fair trials:
"Usually referred to only by his initials, KSM was the operational mastermind behind the attacks of September 11, 2001. Captured in Pakistan in 2003, and transferred to the American prison at Guantanamo Bay in 2006, he is the highest ranking al-Qaeda member taken into U.S. custody since 9/11."
How strange that she simply accepts this as a fact in an article about the miscarriage of justice and the presumption of guilt!
I took a moment to consider whether Ms. Greenberg was exercising due irony but apparently not. No "alleged" necessary for Mr. KSM...who under the most extreme & relentless forms of torture has confessed!
"I could reassure you about how KSM's guilt is remarkably well-documented and how he might get what so many seem to want for terrorists, and what, as he's made completely clear, KSM wants for himself: execution."
Evidently, Ms. Greenberg has had actual conversations with KSM where he has articulated his wishes to her. Or maybe it was the interview he had with Larry King... or was it with Matt Laur that KSM confessed to his crimes...no, wait, that was the other terrorist ...the one who is still at large.
Holder even announced the verdict and sentence before the trail. And yet they are still too timid to risk staging one.
'It's a pun!' the King added in an offended tone, and everybody laughed, 'Let the jury consider their verdict,' the King said, for about the twentieth time that day.
'No, no!' said the Queen. 'Sentence first - verdict afterwards.'
'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'
'Hold your tongue!' said the Queen, turning purple.
'I won't!' said Alice.
'Off with her head!' the Queen shouted at the top of her voice. Nobody moved.
Still KSM apparently will never get an actual trial because... after all.. despite his absolute guilt... he might be found innocent by juries that would convict Alice for terrorism. The U.S. "justice department" (excuse the oxymoron) is so nervous that a slam dunk "show trial" might go amiss that they won't have one!
These clowns make Stalin look like Hammurabi.
"Or maybe it was the interview he had with Larry King... or was it with Matt Laur that KSM confessed to his crimes...no, wait, that was the other terrorist ...the one who is still at large."
I assume you mean "He who would be Emperor".
Most Americans refuse to accept that George W. Bush has killed and terrorized more Iraqis than Saddam Hussein.
Federal courts have continuously allowed that _anyone_ on US soil (and Guantanamo _is_ US soil in all ways ... the Cubans have _no_ control over it) is entitled to all the rights under the Constitution, no matter what their status. The fact is, the people at Guantanamo were held UNCONSTITUTIONALLY without charges, without access to legal council, without a speedy trial, without the right to confront their accusers ... in other words, incomplete violation of LAWS.
I don't give a damn if they are, or can be proven, guilty of anything, the simple fact that their rights under our Constitution and Laws have been violated means that THE CASES SHOULD BE THROWN OUT OF COURT. It happens all the time in other cases.
OUR GOVERNMENT has violated its own laws, and the cases should be tossed ... for someone accused of grand larceny or murder, such treatment would result in the judge throwing it out.
George W. Bush violated the Constitution by making a unilateral executive decision to deny these people their rights as Prisoners of War ... the fact that Bush declared a War on Terror makes all of them POWs. No president has the Constitutional power to be judge and jury and imprison anyone without due process. the courts have said as much by releasing some prisoners outright (although the government continues to detain many of those people), and requiring that the rest must stand trial.
GW Shrub once stated that it is the president's duty to interpret the law. I always thought that was the duty of the courts, and ultimately the supreme court, so I have to thank the ex-president for that enlightenment.
I agree with Progressive_Patriot: the cases should be thrown out of court and the prisoners released for the government's failure to comply with the due process rights of the detainees.
It's premature at best to speak of justice. Not until the illegal detainment and torture policies end, and those responsible for the illegal imprisonment and inhumane treatment of the Guantanamo (and other) detainees are held accountable for their crimes, will justice be fully served.