November 24, 2009

KSM to Stand Trial, Part 3

Neoconservative columnist Linda Chavez believes that Eric Holder has put America at risk by deciding to try Khalid Sheikh Mohammed and four other terror suspects in federal court. Because, Chavez warns, there’s a possibility, a very good possibility, that these suspects will be acquitted. She writes:

Does Eric Holder remember the most infamous criminal trial of the 20th century, the 1995 trial of O.J. Simpson for the murder of his estranged wife, Nicole, and Ronald Goldman? There are obvious differences between a criminal murder trial in a state court and one tried in federal district court -- and, the O.J. trial featured incompetent prosecutors who tried their case before an inept judge -- but there are also problems inherent in the system that may not be avoided. No matter what Holder says about failure to convict not being an option, our entire legal system is based on the presumption of innocence of the accused and there are simply no guarantees.

And, of course, Chavez is correct. In the American legal system, there are no guarantees. Stop me if you’ve heard this before, but it turns out that when you grant someone the presumption of innocence, when you grant them the right of trial by jury, then you create the possibility that they might be acquitted. All of which means that, in theory at least, even KSM could get off.

Chavez spends the remainder of her column discussing this possibility, envisioning a scenario in which KSM’s lawyers employ wild conspiracy theories (reminiscent of the Dream Team’s “OJ was framed” argument) to convince the jury that 9/11 was actually an inside job. Claiming that KSM’s attorneys will try to get as many black jurors as possible—after all, Chavez writes, blacks tend to buy into all sorts crazy beliefs—she reminds us that it just takes one paranoid juror to force a hung jury. Given this horrible possibility, Chavez concludes that KSM shouldn’t stand trial.

Now I’m certainly not going to defend Khalid Sheikh Mohammed. It seems clear that the guy’s a thug and a murderer, but, even so, he’s entitled to a fair trial. And you don’t have to take my word for it. Just read the fricking Constitution—namely, the Fifth Amendment, which states that “no person” shall be “deprived of life, liberty, or property, without due process of law,” and the Sixth Amendment, which states that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Though some might argue that these Amendments only apply to American citizens, this is plainly not the case. The Supreme Court ruled in the 1896 case of Wong Wing v. United States that, although the federal government has the right “to exclude or to expel aliens,” it cannot deprive them of the rights laid out in the Fifth and Sixth Amendments. This position was reaffirmed in the 1990 case United States v. Verdugo-Urquidez in which the Court ruled that the Fourth Amendment does not apply to aliens. As the Court concluded, the Fourth Amendment, like the First, Second, Ninth, and Tenth Amendments, only applies to “the people” of the United States, whereas the Fifth and Sixth Amendments, which employ the more inclusive language of “persons” and “accused,” apply to all people. (Thanks to Thomas Knapp for pointing this out to me.)

I understand why Linda Chavez doesn’t like the idea of bad guys being acquitted. I don’t like the idea either. But what’s the alternative? Should we just allow the state to imprison anyone it has evidence against? No trial, no judge, no jury—if the state believes that someone’s a lawbreaker, then off they go?

As law professor Scott Horton has noted, people like Chavez sound eerily similar to Ayatollah Khomeini, who once declared, “There is no reason why a criminal should be tried in the first place … Once his identity is established, he should be killed right away.” And I don’t know about you, but that’s definitely not the type of country I want to live in.

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