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.

Obama's Order to Close Guantanamo and Reasserting Basic Judicial Principles

The reinvigorated patriotic glow of the inaugural festivities has quickly grown dim as the daunting task of reshaping America is already causing some backlash in the media and in the blogosphere. Most notably is President Obama's decision to halt prosecutions at Guantanamo Bay for 120 days and the eventual closure of the facility within one year. This action has sparked outrage that has spilled over into some conservative blog entries with opponents to Obama's order making the claim that this action has made America less safe.

There are some common themes and arguments that those who have written about this topic tend to put forth. These include, and may not be limited to:

- Those who are being detained in Guantanamo Bay are the worst of the worst and pure evil, so you cannot charge them as if they were citizens of the United States.
- Closing the base at Guantanamo Bay and trying the detainees on American soil will invite terrorist attacks on the United States.
- The trials that have been operating under the military commission system are the proper place for "enemy combatants" to be tried.

I should start off by saying that some of the detainees at Guantanamo Bay have been held for over seven years without a single charge being brought against them. At the same time the Bush Administration, and many who offer their support for this facility, continue to put forth the argument that those detained are the worst of the worst and guilty of wanting to destroy America. How do we know this? Because the former Administration has told us so! So in the framing of this discussion and to keep with one of the cornerstones of our system of justice, we must first acknowledge that those accused of crimes, even those as heinous as terrorism, are innocent until proven guilty.

This leads me into the first point that I have listed above. Those who continue to advance the argument that those captured are an exception to "normal" criminals and therefore should not be tried as such. I am not advancing the argument that all of those who are being held at Guantanamo Bay are innocent, in fact there are probably some very dangerous people who are currently being detained. In the same breath, these detainees are human beings. Human beings who have made choices, aligned themselves with various ideologies, and hold strong beliefs (right or wrong) about the way the world should operate. If the choices they have made and the actions that they have taken are illegal, then they should be charged with a crime and have the opportunity for a fair trial just like any other person accused of wrong-doing.

In addition to upholding the basic tenets of justice that the United States was founded upon, the Supreme Court issued a ruling in June, 2008 in which the writ of habeus corpus was restored and it was ruled that detainees had a right to challenge their detention in U.S. courts. So contrary to some arguments, yes, detainees do have the right to challenge their detention in U.S. courts.

Another popular argument of late is that trying the detainees from Guantanamo, on U.S. soil, will make the United States less safe and invite terrorist attacks on the country. This argument has been put forth by members of Congress, columnists, and bloggers alike. Some columnists, like David Stokes, have even suggested that detainees have been treated so well at Guantanamo Bay, that they would be more likely to be abused in the U.S. prison system. From his most recent piece:

People who have spent time at GITMO tell me that prisoners have been treated better there than they are at prisons in America. In fact, it is commonplace for American personnel to be the recipients of abuse meted out by the Guantánamo detainees.

Surely claiming that American captors are the "recipients of abuse" at the hands of the captive is an interesting argument, but it is Glenn Greenwald who does a very good job pointing out in a recent piece that the United States has tried, convicted, and imprisoned terrorists for years without incident. Greenwald sums it up nicely:

If it were really the goal of Terrorists to attack American prisons where their members are incarcerated and if they were actually capable of doing that, they already have a long list of "targets" and have had such a list for two decades. If U.S. civilian courts were inadequate forums for obtaining convictions of Terrorism suspects, then the above-listed individuals would not be imprisoned -- most of them for life -- while the Guantanamo military commission system still has nothing to show for it other than a series of humiliating setbacks for the Government.

Still after these "humiliating setbacks" with the military commission system, as Greenwald calls them, there are many who continue to argue that this is the system in which the detainees should be tried. As I continue to hear this argument, I am reminded of Lt. Col. Darrell Vandeveld, a former prosecutor at Guantanamo Bay that resigned in mid-September due to his objections to the military commission system. In a piece from October at Salon.com, Vandeveld says that he was "truly deceived" by the commission system. From the piece:

His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.

In addition to the resignation of prosecutors from Guantanamo Bay over the military commission system, the very idea that evidence obtained using coerced interrogation is able to be used against those charged underlines what a mockery of justice these commissions are. Suppression of evidence from the defense of those accused of serious crimes combined with the ability to admit evidence obtained through coercive interrogation are two very positive reasons why these trials have been halted and why this system has been placed under review by the Obama Administration.

Standing up for the rule of law and a system of justice that this country has prided itself in since its founding is not "coming to the defense of terrorists" or "wanting to put Americans at greater risk", as some have claimed of those who praise Obama's decision. We are talking about adhering to the basic principles of justice that have set this country apart from dictators in the past. Indefinite detention without charge and the implementation of torture by the leaders of a government is the mark of dictatorships and not a society that prides itself on justice through the rule of law. A return to these fundamental beliefs and practices is necessary for the United States to reassert itself as a country that not only treats its captives with respect, but has a strong judicial process which offers the accused their basic rights.