Show Them the Instruments

WaPo looks at the case of those Keystone Fedayeen known as the Lackawanna Six. The author suggests that the threat of that "enemy combatant" designation and the secret military tribunals that come with it are affecting ordinary trials as well: The fear that they'll be "designated" should things start to go their way at trial encourages defendants to cop a plea.

Comments

[thoreau]

The story says:

U.S. Attorney Michael Battle, whose region encompasses Lackawanna, said his office never explicitly threatened to invoke enemy combatant status but that all sides knew the government held that hammer. "I don't mean to sound cavalier, but the war on terror has tilted the whole [legal] landscape," he said. "We are trying to use the full arsenal of our powers.

"I'm not saying the ends justify the means," he continued, "but you have to remember that we're protecting the rights of those who are being targeted by terror as well as the rights of the accused."

I respond:

First, I respond by asking, how do people post in italics? I wish I knew how to do that, so I could clearly delineate the difference between the quoted article and my comments.

OK, that said, I don't really give a damn about people who train in terrorist camps. HOWEVER, I get very worried when the gov't uses the threat of "enemy combatant status" to persuade somebody to do a plea bargain.

It's one thing to say "Plead guilty to these charges, or we go to the jury and you face the risk of something much worse if they don't buy your defense." It's quite another to say "Plead guilty to these charges, or you get no defense." A person can always waive his right to defend himself by pleading guilty, but when the alternative to pleading guilty is enemy combatant status, then the person never has any right to defend himself.

OK, I know, somebody will now say "Why do you care about the civil liberties of terrorists?" I don't. If somebody really is a terrorist I don't care. But I'm skeptical of the government, I don't automatically believe the government any time it says "This guy is guilty."

For those who automatically believe whatever the government says about a person, do you also believe them when they say "Your tax dollars will only be spent on things that make your life better"? Do you believe them when they say "This new set of regulations will make the market run more smoothly"?

[Plutarck]

In short, it subverts the whole point of having a "trial" or judicial system in the first place. We don't have juries and judges and lawyers just for the hell of it, but to ensure that when someone says "this guy is guilty", that he Actually Is Guilty!

Getting people to plead guilty via threats has the same function as getting confession extracted through torture or coercion and questioning that would (and does) just as well extract confessions from the innocent.

If the government can't prove that a person is a terrorist, then the simple fact is that he must either be not much of a terrorist, or a truly stunningly good criminal mastermind (since his terrorist activity is so subtle and well-hidden that it cannot be exposed and proven).

Any other system can just as easily convict the innocent as the guilty, and if we are going to have a system like that then we might as well not have a system at all. What could possibly be the point, other than to at least give the appearance of fairness - as in the courts of the USSR and such.

Who could possibly think that is at all a good idea? Even if it made you physically safer, who would want to live in a country like that? How good of a life could you possibly have, where at any moment you could be accused of a crime you did not commit and have it all taken away?

A system which protects the innocent neccessarily frees some who are guilty; you cannot, apparently, have it any other way. Terrorists are not superhuman - they have to work in teams. One terrorist that couldn't be convicted means little, as he can still be surveiled (recall that it took at least 16 terrorists for September 11th, which counts only the individuals on the planes, not all those who participated in the planning, financing, and other implementation activity). But innocent people who are lawfully convicted cannot simply have their lives given back, or so easily freed (after all, they would NOT have been convicted due to fraud or insufficient evidence).