Sentence first! then a trial

The announcement that we will have prosecutions of some 9/11 conspirators in New York’s federal courts is welcome despite the criticism that Attorney General Eric Holder has opted for what are essentially show trials. But the point today is to overcome the hysterical fear of the rule of law drummed up by those hostile to American principles whose views are now trumpeted for all to hear.

I agree with the legal critics of the Obama team’s decision to provide due process only to the extent required to assure convictions. That means a full federal trial for the accused who are already toast, military commissions for those where the cases are weaker and continued detention of those who would get off in any fair trial. So the exercise in public justice for the big fish is already a rigged affair.

The proof that there is little interest in what we used to call criminal justice was ably demonstrated by the truly priceless question asked by the AP reporter at Obama’s news conference on the trials:

‘President Obama’, said Jennifer Loven, ‘how can you assure the American people that a trial of Khalid Sheikh Mohammed . . . [will] not result in an innocent verdict for him?’

Unfortunately, I have not been able to find a transcript of Obama’s answer, but it would have been great to hear him say, ‘Well, Ms Loven, that’s how the American jury system works: they get to decide if the defendant is guilty’.

Holder’s idea is to bring no one to trial who could possibly convince a jury to acquit, so Jennifer L needn’t worry. But it tells us a lot about how the suspension of habeas corpus during the Bush years has undermined civil protections in the minds of the citizenry.

Of course, innocent detainees—or those the system can’t be sure of convicting—won’t be getting fancy trials in federal courts, and therein lies the true challenge for our legal system. Holder’s stacked-deck arrangement does not repair the damage to due process.

But I think as a first step there is something to be said in its favor: we get the chance to see the big bad guys in a court of law with defense lawyers and procedures our system awards even to serial baby-killers. We might even manage to recall that we put these procedures in place for a reason and why we no longer place the accused on the rack or give him the thumbscrew to determine his guilt.

Holder’s Catch-22 process doesn’t award Omar Khadr, the Canadian teenager trapped in a Guantánamo dungeon, the chance to prove his innocence in a real trial. For now, though, the political compromise announced provides his best chance of eventually getting one.