A nation circling the drain can’t ask for anything better than a good show trial to take its mind off its myriad troubles.
I’m sure the trial will be an exemplary demonstration of cool, rational jurisprudence, and never mind the five other Guantanomo detainees who will be tried by military tribunals.
If you’re accused of being a Terrorist, there’s not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win. Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called “post-acquittal detention powers.” Is there any better definition of a “show trial” than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?
Of course there are those who gravely lament the impending spectacle, the fakery of judicial “impartiality”, the pompous sermons about the rule of law, the hysteria, the howls for vengeance. Bring them on, say I. Let’s face it, we could do with some drama and American political life is at its most vivid amid show trials. Their glare discloses the larger political system in all its pretensions and its disfigurements. The show trial is as American as cherry pie , as the former Black Panther H. Rap Brown – currently serving life without the possibility of parole in the Supermax in Florence, Colorado – famously said about violence.
The meatiest part of the Cockburn piece comes courtesy of The real price of trying KSM, an excellent Slate article by David Feige, a former public defender, about the mountains of bad legal precedent that will come from all this:
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.
In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.
Update: The last word will be to an old guy. Paul Craig Roberts, in the aptly titled “A Trial to Convict Us All,” reminds us that Thomas Paine wrote in Dissertations on First Principles of Government (1790):
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
Every principle of impartiality tossed aside that protects Those Who Deserve No Protection (like, uh, say, Terrorist MasterMinds ™, is another law WE lose to protect our own sorry selves. It’s a pretty simple concept. Been around for a while.