Dangerous Liaisons

By Mark David Blum, Esq.

In a declaration by U.S. Attorney General Eric Holder and later echoed by President Barack Obama, Khalid Sheik Mohammed and four other accused terrorists have a date with a civilian court and then the executioner. Held without trial for eight years at Guantanamo Bay, Mohammed has already offered to plead guilty in front of a military tribunal to being the mastermind of the 9/11 attacks and has asked to be executed. The Attorney General proclaimed that he and not the terrorists will decide how and what kind of justice will be administered and toward that end, has ordered the case removed to a civilian federal court in New York.

So confident is our Attorney General that he has nearly guaranteed a conviction and an execution of Mohammed. He claims to have overwhelming evidence secured through lawful means and that a conviction is a foregone conclusion. Apparently and despite 158 waterboardings and other forms of treatment that constitute torture, the Attorney General was able to arrange a clean team to gather untainted evidence sufficient to execute Mohammed.

There is however a grave danger lurking in these proceedings. Asked specifically whether the accused would be let go should the charges be dismissed or the defendants acquitted, the Attorney General said “no, we wont just let him go.” That posture to me seems like a grave and gathering threat to all of us. When a court dismisses charges or a jury acquits a defendant, there cannot be a lawful basis to continue to detain someone. We have to let them go. That is how our system works. To allow for continued detention or punishment after a dismissal or acquittal would set a terrible precedent for all Americans and put the very legitimacy of our criminal justice system in question.

In the United States, we treat our judicial branch as an independent entity, not subject to the whims or wills of whatever political winds are blowing by. Though we may not always agree with how our judges rule or how our juries render verdicts, we accept the outcomes because we trust that the outcome was fairly and properly reached. If we lose faith or confidence in the honor and integrity of an independent judiciary, then we will have anarchy. Regardless of the outcome, the full faith and credit of the United States government must stand ready to enforce a court’s ruling, however unpopular it may be. Look no further than the National Guard being federalized to secure the entry into schools for the Plaintiffs in Brown v. Board of Education.

When it comes to the question of terrorists, America can pride itself on its civilian courts and their ability to deal with the complexities and chaos of a super trial. The twentieth hijacker, Zacharias Moussaui was tried in a civilian court, convicted, and sentenced appropriately. Then Mayor Rudy Guliani said we can all take pride in our courts. He said that through our civilian criminal justice system, we prove to the world that we are a nation of laws and that our system can rise above emotions and deal with criminals of every stripe. Unlike many nations, we trust our judicial system and feel confident that justice is not meted out with a bullet in the back of the head by law enforcement.

There is a moral question that remains unanswered. Namely, we as Americans still debate whether 9/11 was a criminal act or an act of war. We argue whether terrorists should be treated as criminals, prisoners of war, or just enemies of the nation. The Attorney General has mixed feelings as some of the Guantanamo Bay prisoners are to be tried in civilian courts, some are to be tried before military commissions, and others are just to be held indefinitely without trial. Smarter people than am I will have to answer this question. I opine that either a person is a criminal or an enemy soldier. We subject criminals to our justice system and enemy soldiers are held until the war is over.

War crimes are a unique class of crimes that are dealt with separately such as in Nuremburg or in Tokyo. In those situations, we look at a specific event within the context of war and then conduct a criminal trial in front of a military tribunal. But we do not call war crimes those acts which are little more than military attacks. We did not try Hitler’s government for the attacks on France or Russia. It was not a crime for Germans to defend against the D-Day invasion. That is what soldiers do; they attack the enemy. Call the 9/11 attacks what you will. By any definition the towers, the Pentagon, and Washington D.C. were legitimate military targets. But we were not at war. The persons who attacked us were not an enemy state. Well financed and organized indeed, the 9/11 attackers were just a bunch of thugs and criminals who sought to bring pain and suffering to the People of the United States.

The 9/11 attacks were not an act of war but an act of criminal barbarism. They were no different than the attack by Timothy McVeigh albeit on a grander scale. Consequently, the decision to bring those involved to trial in a civilian court, like McVeigh, is the right and just decision. It may be costly, it may involve security risks, and such a trial may put a great deal of stress on our society. But at its core, this case belongs in a civilian court. The Attorney General made the right call. I trust that the evidence will indeed be overwhelming and the defendants will be convicted.

But, and I speak hypothetically, what if the worst case scenario materializes. Our criminal justice system is one of the crown jewels of our liberty and life as free citizens. Contained within that system is the possibility of acquittal or dismissal. There has to be such a potential outcome because without that option being on the table, our justice system loses its luster. We must recognize that in every trial, regardless of how heinous may be the accusation, that the defendant will get a fair trial and a fair trial includes the possibility of acquittal or dismissal. Absent that alternative, our courts become kangaroo courts where there really is no justice and the entire process of trial becomes just a pro forma fait accompli. It becomes a joke and is not to be trusted as either independent or fair.

When you come into contact with the criminal justice system, there are certain rights and privileges that attach. They attach regardless of your status as an American citizen, an alien, a visitor, or as in the case of Mohammed, you are captured abroad and brought here. Certain constitutional rights attach to every “defendant” regardless of citizenship status. These rights are there to assure the defendant gets a fair trial, to assure that the safeguards in the constitution are respected, and to assure that the evidence and verdict can be trusted. Among those rights are the right to counsel, the right to remain silent, the right to a trial by an impartial jury, the right to have only untainted and reliable evidence presented against you, and proof of guilt beyond a reasonable doubt. The United States Supreme Court long ago recognized that there is only one real method to assure police and prosecutors comply and respect the law and rights of the accused. That insurance is called the “exclusionary rule”. Simply put, if evidence is illegally gathered, if the defendant’s rights have been violated, or if the prosecution is otherwise illegal, judges are supposed to block the admission and use of improper evidence. It does police no good to violate a right to silence by beating a confession out of a suspect when the court is going to deny the admission of that confession. This is the incentive for police and prosecutors to behave in accordance with the law and its ideals.

So we come back to the question asked of the Attorney General. What do we do if the trial court finds that evidence is not admissible or that the defendant’s rights were violated? How do we respond if due to a lack of quality admissible evidence, a jury cannot find guilt beyond a reasonable doubt? I say we have no choice. We must let them go. The very heart and soul of our criminal justice system would be irreparably harmed should we fail to respect the judge or jury’s verdict. If we are to prove to the world that we are a nation of laws, then we must respect those laws even when doing so leaves a bad taste in our mouths. To do otherwise, to continue to detain Mohammed and his co-conspirators after an acquittal or dismissal would do violence to the very foundation of our legal system. It would strip away its independence and leave the People without a system they can trust.

Khalid Sheik Mohammed wants to plead guilty and be executed. Perhaps instead of a civilian trial, we should just grant him his wish. It seems to me that the Attorney General is putting his own arrogance ahead of what may be in the interests of justice. Let the defendant choose his fate. Let Mohammed have his date with the executioner. If he wants to walk into court and plead guilty, then so be it. There is no stronger evidence of guilt than a confession made in open court.

But if we are going to insist on a trial, then we must also accept everything that goes along with it. That includes the possibility of acquittal or dismissal. Everything we hold near and dear as a nation of laws demands nothing less.

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