Nobody Is Going to Let Them Off: the Problem with the Coming Trial

Enemy soldiers should be held in prisoner of war camps. If they are spies or have done something that merits the death penalty, they should be tried in military courts. They should not be tortured and they should be treated with human dignity.

These seem like safe assumptions, but the Obama administration has decided that the New York terrorist attacks were not acts of war, but crimes. As a result, the terrorists will be tried in civilian courts.

This is a very bad idea, but not just  for the usual reasons given. It is a bad idea, because whatever we do this will be a show trial. The outcome is certain and everybody knows it.

There are some public crimes so odious that it is essentially impossible to give the defendant a fair trial. Ask yourself this question: “What are the circumstances where a judge or jury will let the terrorist go?” He admits to being a terrorist. He is happy 9/11 happened.

This is a show trial and show trials are only good for Soviets and Klingons.

They are the one chance for these monsters to look sympathetic. They will look clownish here, where their speeches will be the stuff of late night comedy gold, but in other nations where they will look like martyrs to (at least) a significant minority. The illusion that they are being given “a fair trial” where they could (in theory!) get off is obvious nonsense and people abroad will sense it.

They will be given as fair a trial as we can give them, but they have no chance to get off, because we cannot afford to let them off. Judges will make sure that they are convicted, because they are guilty. We know this with as much certainty as humans can know that sort of fact.

Any judge will do what it takes to avoid the odium of being the OJ judge times a million who let an obviously guilty set of men free because of technicalities or what will look like quibbling from the bench. What precedents will be set? How will such a judge look in high definition in countries open to the defendants claims to persecution?

Juries will convict them, because juries usually do the right thing and this is the sort of case where doing the “wrong thing” (acquitting) flies in the face of any bad motives. It would take moral bankruptcy, stupidity, combined with a weird altruism to acquit men who confess their hideous crimes.

That is a rare combination indeed.

Most jury members take their jobs seriously and try to do right. There are some motivations (racism for example) that might cause a jury to do the wrong thing, but the desire to revenge themselves on the 9/11 terrorists will be the main bad motive in the jury pool.

What about the sure to be endless appeals?

Appeals of conviction will be made up through the system, but what judge will overturn the conviction? Who wants to be the judge to set the 9/11 terrorists free on a technicality? The precedent set to keep the terrorists in jail or on the way to death will be bad for the system. Judges likely will do what it takes, find the reasoning necessary, to sustain a conviction.

This trial then will become at best a carefully ignored precedent (“Nobody refer to the 9/11 trial on appeal!”) or every prosecutors friend. (“You ruled in my favor in the 9/11 trial. . . now this punk is trying to get off on the same grounds.”) In either case, the appeals will corrupt the system intellectually.

Finally, if a terrorist were acquitted in some worse-than-OJ miscarriage of justice would the Obama administration really send him to Iran or some other country with our apologies? You and I both know we would find other reasons to hold him. He would end up being a “prisoner of war” and be back right where he started.

I have friends who argue that there will be almost no trial. The terrorists will plead guilty and things will come to a “happy” and quick conclusion. But how will such a fast try look abroad?

We cannot win in a trial with the millions of folk who will watch it if these men are convicted? Convicting them quickly on a guilty plea will only reinforce the notion of a “fix” in nations where guilty pleas are often coerced. After all, Stalin’s victims all claimed to be “guilty.”

The best thing to have done was to continue to let these men rot in military prison where they are out of sight from the press they crave. They are also appeared to be rats, spilling whatever information they had. Aging prisoners are much less sympathetic than martyrs.

We put a crazy terrorist on trial once. Ask John Brown how it went. A fair trial and hanging made him. If he had been left to rot in some prison cell, he would have spent years playing the fool.

Of course, Brown’s cause was a noble one, though his means were foul. Many outside the United States view the terrorists in the same light. (Obviously I disagree) These people feel the terrorists were right to oppose the US, but “went too far.” Making a martyr of them in a “fair” trial will only send a generation of men into battle singing some equivalent of “John Brown’s Body.”

There is no up side to this decision.