Friday, November 13, 2009

A Two-Tiered System of Justice

The blogosphere is all fired up regarding the recent news that Khalid Sheik Mohammed and five others are going to be brought to the United States to stand trial in civilian court. Here is one example from Doug Payton over at Considerettes:

Khalid Sheikh Mohammed, self-proclaimed mastermind of the 9/11 attacks, is being promoted to, what amounts to, full citizen of the United States of America for purposes of standing trial, in civilian court, for his war crimes. He’ll get all the rights and privileges afforded citizens, and even just residents living under the laws of our land, even though he has never been either of those.

Nazis are rolling over in their graves. No doubt John Kerry, who called the war on terror a "law enforcement" issue is feeling vindicate today.

I suppose this type of reaction from the right is to be expected, even complete with hyperbole about Nazi's!

I first heard of this news on NPR in my car this morning and while my initial inclination was to applaud the Obama Administration for finally bringing charges against these individuals I then heard the other half of the announcement. Namely:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

Al-Nashiri is an accused mastermind of the deadly 2000 bombing of the USS Cole; Khadr is a Canadian charged with the 2002 murder of a U.S. military officer in Afghanistan. Khadr was 15 years old when he was captured in July 2002.

Holder said a venue for the military commissions has not been set.

Sigh. So the American system of justice is good enough for some, but we must resort to the controversial "Military Commissions" for others? That sure sounds like a two-tiered system of justice to me. Despite all the comments I have seen today saying that we should just execute KSM or that he shouldn't be afforded a trial, we should aspire to be a civilized society that has a fair justice system that can be applied to even the "worst of the worst". A fair justice system does not seem to jive with the ability of our leadership to simply pick and choose which accused terrorists get afforded a system of justice like that practiced in our civilian courts and which detainees will have to go through the more controversial Military Tribunal system that has been largely criticized.

The obvious question in this situation (as is all too often the case) is why? Why are some detainees deemed fit to stand trial in the United States under one system of justice while others will be tried under Military Commissions? Glenn Greenwald has some ideas:

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.

I think these implications and observations that are made by Greenwald, are being grossly overlooked in the corporate media's discussions on this issue. Most discussions are largely focused on the impact of bringing KSM to the United States for trial and the so-called "security risks" that it could pose. The greater implication that Grennwald outlines, is why these two systems of justice are being written. A very telling portion of Attorney General Eric Holder's statement on this issue was this segment (emphasis mine):

In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July. Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered. In consultation with the Secretary of Defense, I looked at all the relevant factors and made case by case decisions for each detainee.

More Greenwald:

There's supposed to be one justice system for everyone -- not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ's investigation of al-Nashiri was originally classified as a standard criminal case, but -- as his counsel pointed out today -- he was assigned to a military commission because there simply isn't sufficient evidence to convict him in a real court.


And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is "tainted," or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration's use of military commissions on the same grounds that you're defending Obama today?

This system, that of our leadership being able to decide which system of justice each detainee gets, is flawed at best and has the potential to be unjust at worst. These criticisms are why these actions were opposed so strongly when former President Bush implemented these Commissions and why they should be equally opposed as President Obama continues their use.


Doug said...

I just noticed this reference to my blog post at Considerettes, so pardon the (nearly 1 month) delay in responding.

The reference to Nazis was not, as you suggest, hyperbole. War crimes committed during WWII were not prosecuted in the civilian court system, but war crimes today area apparently "law enforcement" issues. There's a clear difference here that you're handwaving away simply because I used the N-word in a sentence.

Now, you may approve of that change, but you've glossed over the point entirely, simply referring to it as some type of "reaction" rather than considering it. Our civil laws are meant to prosecute civil crimes, not war crimes. The discovery phase of a criminal trial is supposed to aid both sides, and it did, actually, during the civil criminal trial for the 1st WTC bombing. It was so good, that some of these documents, detailing some of our national security measures, were found with other terrorists. Some of the bad guys have gone free because the government didn't want to further the terrorists' knowledge of our intelligence gathering techniques.

This is not how to prosecute war crimes; by enabling the enemy.

Chris said...


First and foremost thanks for stopping by.

Second, regarding my use of the word "hyperbole"...given your greater description of your Nazi reference in your comment, I can see that your reference was not hyperbolic.

My main focus in this piece was not on whether it was appropriate for KSM and terrorism suspects to be tried in Federal Courts, but in the different systems of justice that the Obama Administration seems to be applying on a case by case basis. Even if we disagree on whether or not is is appropriate to try terrorism suspects in Federal Court (shouldn't we have full confidence in our system of justice that has convicted 195 defendants on terrorism charges since 2001?), I would hope that we would agree on the problems that are created by the Administration creating this tiered system of justice.

Why are some detainees being afforded a trial in Federal Court while others are being tried under Military Commissions? Why are some still being held without charge? It seems as though the Administration is simply picking and choosing as to what venue they can best obtain a conviction...what kind of system of justice is that?

Doug said...

For your part, you raise a fair question. However, as I noted, discovery can lead to the tipping of our hand, and especially in the case of KSM. Unless this is just a show trial, discovery could lead to the education of future terrorists.

As to the almost 200 other trials, if they were indeed guys as high up as KSM, you could have a point. But I rather doubt it. The higher value the terrorist, likely the more sensitive the methods used to capture him.

Terrorists have indeed benefited from our granting their compatriots a status they don't deserve or qualify for. I too would prefer a one-tier system, but for national security reasons, it's not the tier you suggest.