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December 3, 2009
Exclusive: Show Trials
Leftist rationalization is endless. I mean, who needs facts when you have perfectly sound theories upon which to rely? It is worth recalling the stated reason for trying the 9/11 terrorists in civilian courts. The reason, we were told, was a global one having to do with the rule of law; our notions of justice and the deep respect our system commands throughout the world. It is important, we were instructed, to show the world we are really committed to the highest ideals embodied by our criminal justice system and all the constitutional protections it affords. We should proceed unafraid because our system is the envy of the world and we overcome international condemnation when we apply our attenuated, artificial constitutional standard, otherwise so necessary for a free society, to the trial of even such as the 9/11 terrorists.
If we truly believe that ours is the system that most ensures justice – by reason of the very strict constitutional standards we demand and enforce – then we must show ourselves to be righteous by living up to those standards we proclaim throughout the world to be so superior to all others. We must, therefore, try the 9/11 terrorists in accordance with those standards.
How self-righteous. How very smug and self-satisfied. How very characteristic of the left. Leftists, whose very philosophy is built on a foundation of moral relativism and is otherwise deeply immoral, so enjoy, in superior tones, lecturing others on morality, even as they deny its existence as a determinable absolute.
Let’s start from the first premise of this argument which is that our justice system is the “envy of the world.” It isn’t. It is an international laughingstock in a world that finds it unfathomable that we would impose constitutional standards that result in allowing clearly guilty people to go free. French intellectuals do not celebrate our system of justice; they only celebrate our inferiority when it does not work perfectly. No one in the Middle East considers ours a superior system. The only reason Middle Easterners opt for it in favor of their own is because they believe our system can more easily be gamed and they stand a better chance of getting off than in any other system. If anyone in the world truly thought our system superior to their own, they would adopt it. They haven’t.
The truth is that criticism of the United States for imposing a different standard on terrorists than it does on American criminal defendants has nothing to do with a belief that our criminal trial system is superior. It is merely a cudgel with which to beat us up using our own ideals as the weapon. The fact is that if we were to adopt a less liberty based system that ensured that no guilty man would get off, regardless of civil liberties violations by the authorities, no one in the world would suggest that we were wrong to do so. Certainly, their systems suffer no such defect. Indeed, they would take it as confirmation that our system is the broken wreck they already believe it to be and we the hopeless naïfs or, worse, the hypocrites they want to think we are. They simply like to see those of us who continue to retain ideals fall short as a sort of validation that we are not so much better than they after all.
If the point was to overcome world condemnation and accusations of hypocrisy, as the administration has said, then the standards applicable to American criminal defendants must be zealously and jealously and strictly applied. That would inevitably result in dismissal of the cases against all of the defendants if, for no other reasons, than that they were denied counsel at the earliest time it was demanded and they did not receive speedy trials. (Not to mention the remedy the fertile mind of a federal judge might consider for those who have suffered “torture” at the hands of authorities.)
When the administration ran into a buzz saw of opposition, it and its defenders immediately settled on talking points to defend this profoundly idiotic move. The first, of course, was, predictably, the common school yard taunt that their opponents are “chicken” for their fear of the terrorists. This was predictable from an administration most of the members of which are, if at all, so recently out of short pants. Of course it missed the point, but it was not a serious point to begin with. It was hurled merely to taunt, not to engage in meaningful discussion.
It misrepresented the legitimate concerns of those who so oppose the idea of extending American civil liberties protections to those who are neither constitutionally entitled to nor morally deserving of them. It is that we cherish our system of ordered liberty and the constitutional protections it extends to Americans. It is that if we do not strictly apply those standards in this case, we will dilute them for Americans by the precedent it will set. It is that we know if we do strictly apply them, the cases would not likely survive pretrial defense motions.
It is that this action sets a precedent from which others may now argue that our 250-year-old system of the use of military tribunals for the trial of foreign terrorists and saboteurs is inadequate and they are now constitutionally entitled to trial in our civil courts. It is that it is revolting to think that these terrorists will receive greater constitutional protection than the fighting men and women who are dying to protect us from their depredations.
It is not that we fear the terrorists. We have them in our hands. It is that we fear the abysmal judgment of those who made this decision without adequate thought never having, themselves, prosecuted such a case. Or, in the case of Mssrs. Obama and Holder, any criminal case, ever. It is that we know this act is a profoundly cynical one born of ideology unleavened by thought and taken of the basest political motives.
The second talking point is the more curious, however. When challenged, Mr. Obama, with his practiced pained expression that combines impatience and long suffering, proclaimed that there is no question but that the terrorists will be convicted and executed and when that occurs, as inevitably it will, it will shut his critics up. Mr. Holder followed up by saying that there is virtually no chance the terrorists will get off.
Administration officials and leftist pundits suggested that federal judges are very deferential to the government in trials of this sort. They pointed out that no terrorist has ever escaped conviction in a federal court. That conviction is a foregone conclusion. That no judge is going to let the defense win. That no federal judge will ever let the defendants walk out the door free men regardless of the evidence. And, in any event, that even if the defendants are acquitted, the administration would, using tools already in place including, yes, military tribunals, hold them indefinitely and forever so they will never, ever get out.
Sounds a bit like the old western trope that “We’ll give ‘em a fair trial and then we’ll hang ‘em!”
Remind me again. What was the purpose of bypassing military tribunals in favor of federal courts? Was it to impose American standards of constitutional justice? Was it to show the world that we can extend all American constitutional rights even to these people and give them a fair trial in our justifiably respected civilian courts? Was it to vindicate our highest ideals and the rule of law? That’s what I thought.
So, how does one extend a “fair trial,” pray, when the outcome is predetermined?
At this point, whatever international bang Obama sought for the buck of trying these people in civilian courts is completely lost unless the defendants walk free. If they are convicted because of judicial deference to prosecutors, we will be accused of systemic hypocrisy. This, in contrast to the situational hypocrisy that is already the accusation. If they are convicted at all, the usual critics will point out that even Obama said it was predetermined and they did not actually get a fair trial. It was a put up job. It was no more than a show trial; a judicial Potemkin village. It was no better than the show trials during the Soviet era.
Worse, though, much worse, would be if the defendants were acquitted and the administration were forced to keep them behind bars anyway. This solution was pointed out by Josh Marshall at talkingpointsmemo.com as demonstrating that conservative criticism of the New York terrorist trials is misguided. Administration officials echoed that reassurance. And, truly, if the 9/11 terrorists were acquitted, Obama would have no other choice if he wanted even an off chance of reelection. But can you imagine the reaction of the world opinion the administration so assiduously courts if that were to occur? The accusations of hypocrisy we already suffer would be dwarfed by the avalanche of condemnation that would surely descend were we to jail these men despite acquittal. And I am fairly certain that Josh Marshall (whoever he may be) would be among those leading the charge (to the extent he leads anything other than his red wagon).
And all of our claims of cherishing the “rule of law;” of our superior and objective judicial system; of our fair trials will be seen as so much bunk. As just one more American lie.
Obama, having already told the world that convictions are certain and death sentences guaranteed, has squandered any imagined benefit he might have gotten by this boneheaded move. Now no one will reasonably believe that these trials are not deeply unfair proceedings before kangaroo courts done merely for effect, not for justice and certainly not for the vindication of the American criminal justice system, let alone our highest ideals. What a terrific way to discredit our courts.
Way to go, guys.
Family Security Matters Contributing Editor John W. Howard is a lawyer, specializing in corporate and business litigation who also founded a non-profit, public interest law firm specializing in First, Second and Tenth Amendment issues.
Reader Comments: Submit Your Comment (2) | Sign Up for FSM Updates!
Excellent article. The unjustified prosecution of Navy SEALS who captured the guy who killed and desecrated the bodies of Americans in Iraq presages the type of problems that would follow if the KSM trial goes forward.
All the best,
Elaine Donnelly
Center for Military Readiness
posted by: Elaine Donnelly
Thursday, December 3, 2009 at 12:46 AM
I'm no lawyer, but the last I heard, when someone—especially one of prominence and influence—makes public statements of opinion concerning the guilt of the defendant(s) such as the ones made by Obama and Holder, the judge declares a mistrial because the remarks are prejudicial and will likely impact the opinion of any potential jurors who might hear the remarks. Obama—of all people—should have never made such a mistake.
posted by: TexasThinker
Thursday, December 3, 2009 at 05:04 PM
