Friday, November 13, 2009

Trials: Punishing Terrorists the Right Way

Today our Attorney General, Eric H. Holder Jr., said his office will prosecute five war detainees accused of participating in the 09/11/2009 terrorism plots, in civil court and four war detainees, including one involved in the bombing of a U.S. naval destroyer in 2000, before a military commission.

Some conservatives, no doubt will oppose this decision. John Yoo, a law professor who served in the Bush administration's Justice Department, said will allow the accused to expose our intelligence gathering techniques within the courtroom. Others say Khalid Shaikh Mohammed, who may be the mastermind behind the 9/11 terrorist act that killed 3,000 + men, women and children, may be released or otherwise acquitted by a jury of his peers since some of the information which his interrogators obtained was gathered through illicit means.

The information which the accused may seek may no doubt include classified information that should not be released to the public. The judge that ultimately hears the case, however, can impose restrictions on the release of that information and close at least a part of these trials from the public while letting the accused cross-examine the witnesses testifying against them.

Mohammed will have his day in court. He will face his accusers and the charges that are leveled against them and he will have the opportunity to refute them before a jury of his peers. If Mohammed and his co-conspirators are convicted they will face the death penalty, where again they will have an opportunity to confront, and refute the evidence used to justify its use. If they are acquitted, and there are no other charges pending against them, Mohammed and his co-conspirators could be set free.

Conservative grand-standing notwithstanding, this is a risk we face every day. Your local pedophile can be released if the evidence that is used against him was tainted by substandard evidence-gathering techniques. The suspected serial killer might be released if the testimony provided by him (or by other witnesses) is proven unreliable since it is coerced. Timothy McVeigh, the man who was convicted of and executed for the bombing of Alfred P. Murrah Building in Oklahoma City fourteen years ago could have walked (to bomb again) another federal building if he was acquitted by the jury of his peers. Had the decision gone the other way, McVeigh would have lived to bomb another day.

In one sense, the stakes involved hear are loweer. Should he be acquitted, Khalid Shaikh Mohammed won't be released into the general public. Since he is not an American citizen, he will be released to the country of his birth or any other country that would accept him.

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