Detainees to Get 'The-State-Always-Wins' System of 'Justice'

According to The Associated Press,
Eric Holder will announce later today that Khalid Sheikh Mohammed and
four other 9/11 defendants will be brought from Guantanamo to New York
to stand trial, in a real criminal court, for the crimes they are
accused of committing. This is a decision I really wish I could
praise, as it's clearly both politically risky and the right thing to
do.

An open criminal trial under our standard system of
justice, accompanied by basic precepts of due process, is exactly the
just and smart means for punishing those responsible for terrorist
attacks. It announces to the world, including the Muslim world, that
we have enough faith in our rules of justice to apply them equally to
everyone, including to Muslim radicals accused of one of the worst
crimes in American history. Numerous family members of the 9/11 victims
have long argued that real trials for the accused perpetrators are
vital to providing real justice for what was done -- I expect to have
an interview later today with one of those family members -- and
holding the trial in New York, the place where 3,000 Americans died,
provides particularly compelling symbolism. So this component of the
Obama administration's decision, standing alone, is praiseworthy indeed.

The problem is that this decision does not stand alone. Instead, it is accompanied by this:

Holder will also announce that a major suspect in the bombing of the U.S.S. Cole, Abd al-Rahim al-Nashiri, will face justice before a military commission, as will a handful of other detainees to be identified at the same announcement, the official said.

It
was not immediately clear where commission-bound detainees like
al-Nashiri might be sent, but a military brig in South Carolina has
been high on the list of considered sites.

So
what we have here is not an announcement that all terrorism suspects
are entitled to real trials in a real American court. Instead, what we
have is a multi-tiered justice system, where only certain individuals
are entitled to real trials: namely, those whom the Government is
convinced ahead of time it can convict. Others for whom conviction is
less certain will be accorded lesser due process: put in military
commissions, to which most leading Democrats vehemently objected
when created under Bush. Presumably, others still -- those who the
Government believes cannot be convicted in either forum, will simply be
held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A
system of justice which accords you varying levels of due process based
on the certainty that you'll get just enough to be convicted isn't a
justice system at all. It's a rigged game of show trials. This is a
point I've been emphasizing since May,
when Obama gave his speech in front of the Constitution at the National
Archives and explained how there were five different "categories" of
terrorism suspects who would be treated differently based on the
category into which they fell:

If
you really think about the argument Obama made yesterday -- when he
described the five categories of detainees and the procedures to which
each will be subjected -- it becomes manifest just how profound a
violation of Western conceptions of justice this is. What Obama is
saying is this: we'll give real trials only to those detainees we know in advance we will convict.
For those we don't think we can convict in a real court, we'll get
convictions in the military commissions I'm creating. For those we
can't convict even in my military commissions, we'll just imprison them
anyway with no charges ("preventively detain" them).

Giving
trials to people only when you know for sure, in advance, that you'll
get convictions is not due process. Those are called "show trials."
In a healthy system of justice, the Government gives everyone
it wants to imprison a trial and then imprisons only those whom it can
convict. The process is constant (trials), and the outcome varies
(convictions or acquittals).

Obama is saying the opposite:
in his scheme, it is the outcome that is constant (everyone ends up
imprisoned), while the process varies and is determined by the
Government (trials for some; military commissions for others;
indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

That
the Obama DOJ is now explicitly picking and choosing different levels
of due process in the very same announcement -- we can give that
defendant a trial because we know we'll win, but that one over there
needs to go to a military commission because we're less sure --
highlights how manipulative this "justice system" is.

Former
Air Force lawyer Morris Davis was the Chief Prosecutor of the
Guantanamo Military Commissions system during the Bush years and
resigned in 2008 to become one of its leading critics. Although he
still believes that military commissions are a viable option for
detainees captured on an actual battlefield -- and even believes
the President has the right to detain terrorism suspects indefinitely
with no trial -- he made the same point last week in a Wall St. Journal Op-Ed about the practice of picking and choosing the system of justice one receives based on how likely the state is to win:

In
a preliminary report submitted to Mr. Obama in July, the Detention
Policy Task Force recommended the approval of evaluation criteria
developed by the Department of Defense and the Department of Justice.
The task force stated its preference for trials in the federal courts,
but added the decision would be based in part on "evidentiary issues"
and "the extent to which the forum would permit a full presentation of
the accused's wrongful conduct." A Washington Post editorial
endorsed the proposal, arguing that there should be an alternative
forum when a trial in federal court is "not an option because the
evidence against the accused is strong but not admissible."

Stop
and think about that for a moment. In effect, it means that the
standard of justice for each detainee will depend in large part upon
the government's assessment of how high the prosecution's evidence can
jump and which evidentiary bar it can clear.

The
evidence likely to clear the high bar gets gold medal justice: a
traditional trial in our federal courts. The evidence unable to clear
the federal court standard is forced to settle for a military
commission trial, a specially created forum that has faltered
repeatedly for more than seven years. That is a double standard I suspect we would condemn if it was applied to us. . . .

The
problem is trying to have it both ways: the credibility that comes from
using federal courts with admissible evidence under the very strict
rules of civilian tribunals, and military commissions for cases that
are often comparable except for the fact that they depend on evidence
(such as hearsay testimony) that is not normally admissible in civilian
courts. What if Iran proposed the same for the three American hikers it is currently holding? We would surely condemn what we now stand ready to condone. . . .

Double
standards don't play well in Peoria. They won't play well in Peshawar
or Palembang either. We need to work to change the negative perceptions
that exist about Guantanamo and our commitment to the law. Formally
establishing a legal double standard will only reinforce them.

Obama
is certain to be bombarded with all sorts of right-wing idiocy and
fear-mongering as a result of his decision to bring 9/11 defendants
into the U.S. in order to give them trials. Doing that is clearly the
right thing to do: trials and due process is how civilized countries
treat people who are accused of engaging in terrorism. Given how
Democrats and Republicans will talk about this decision, media coverage
will almost certainly fixate on the narrow question of whether (a) 9/11
defendants should be given trials in the U.S. or (b) we're all now
Endangered because these Omnipotent Monsters are being brought into our
communities (in handcuffs, shackles, and maximum-security prisons).
The AP article already includes this preview of the inane attacks on
Obama certain to come:

It is
also a major legal and political test of Obama's overall approach to
terrorism. If the case suffers legal setbacks, the administration will
face second-guessing from those who never wanted it in a civilian
courtroom. And if lawmakers get upset about notorious terrorists being
brought to their home regions, they may fight back against other parts
of Obama's agenda.

In a just-posted New York Times article, Charlie Savage also notes
that bringing an accused terrorist of Mohammed's notoriety to the U.S.
for trial is unprecedented and likely to provoke intense political
controversy. In that "debate," I'm squarely on Obama's side, as is any
person who believes in the most basic Constitutional precepts.

But
the more consequential impact of Obama's decision is likely to be
overlooked: we're now formally creating a multi-tiered justice system
for accused Muslim terrorists where they only get the level of due
process consistent with the State's certainty that it will win.
Mohammed gets a real trial because he confessed and we're thus certain
we can win in court; since we're less certain about al-Nashiri, he'll
be denied a trial and will only get a military commission; others will
be denied any process entirely and imprisoned indefinitely. The
outcome is pre-determined and the process then shaped to assure it
ahead of time, thus perfectly adhering to this exchange from Chapter 12 of Alice in Wonderland:

"Let the jury consider their verdict," the King said, for about the twentieth time that day.

"No, no!" said the Queen. "Sentence first -- verdict afterward."

"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.

How
is that remotely just or fair under any definition of those terms? As
Davis wrote: "We need to work to change the negative perceptions that
exist about Guantanamo and our commitment to the law. Formally
establishing a legal double standard will only reinforce them."
There's nothing "pragmatic" or "moderate" about creating a multi-tiered
justice system where only some people get trials; it's both
counter-productive and profoundly unjust.