Some Americans have had difficulty understanding why they ought to care whether people accused of terrorism are given fair trials, as required by the Constitution. To them, it has seemed like a kind of softness to insist upon lawyers for accused terrorists, or a jury trial, or the right of defendants to examine the evidence being used against them. Why would anyone want to grant any rights to someone accused of terrorism, they wonder.
One fact has escaped their notice: A person accused of terrorism is not always a person guilty of terrorism.
To deprive a person of the right to a fair trial because the crime that person has been accused of is particularly reviled is to punish that person before the person’s guilt has been established. It’s the presumption of guilt, the reverse of legal tradition that has stood as the foundation of liberty in the United States of America for hundreds of years.
How can we tell the difference between someone who has committed an act of terrorism and someone who has been falsely accused of terrorism? A fair trial is the only method we can trust. A military tribunal of the sort that the Obama Administration will now use, in which defendants cannot always have lawyers present, in which the accused cannot examine all the evidence used against them, which allow the use of testimony extracted through torture, and which take place after a decade of imprisonment after the crime, cannot be rationally used to determine the guilt of the accused. If these tribunals go forward, there will always be reasonable doubt among the citizenry about whether justice has been served, about whether the people convicted were truly guilty.
Such a system of unfair trials may satisfy the wrath of angry citizens, but it endangers our democracy. In a society where criminal trials are conducted without basic standards of fairness, citizens can no longer trust their own government.
We have been told, when confronted with the troubling precedent that the military tribunals for suspected terrorists create, that there’s no cause for concern, because these tribunals will be only used for a small number of cases, and will present no ongoing threat to the integrity of the American system of justice. That emptiness of that reassurance was exposed, however, almost as soon as President Obama announced that the unjust military commissions would go forward.
As soon as he heard the news, Senator Mitch McConnell stood up on the floor of the U.S. Senate and declared, of conducting trials without constitutional protections, “Going forward, this model should be the rule rather than the exception.”
Already, politicians in Congress, eager to take a posture of toughness, are proposing that the abandonment of fair trials be expanded. How far will these unjust, unconstitutional convictions go before someone in our government has the courage to stand up to them? Will anyone have the power to check the growth of rigged military tribunals by then?