Heads We Win, Tails You Lose
There’s been a lot of discussion in the news about the Justice Department decision to try Kuwaiti terrorism suspect Khalid Sheikh Mohammed in New York federal court. Mohammed is charged with 2,973 counts of Murder, one for every person killed in the World Trade Center attacks.
A known suspect in the attacks, he was captured in 2003, at the age of 39, after a search by Pakistani forces, probably with the aid of the U.S. military. He has been imprisoned since then without trial. Attorney General Eric Holder has expressed confidence that the evidence against Mohammed is so strong that the fact that he was tortured and illegally detained will not prevent the prosecution from obtaining a conviction. Here is a widely-circulated photo of Mohammed, taken by U.S. forces just after he was taken prisoner:
There is less discussion in the U.S. media of Omar Khadr. Khadr is a Canadian citizen who was captured in 2002 at the age of 15, when he was found wounded following a firefight with U.S. forces in Afghanistan, where he had been travelling with his father, a militant Islamist. Khadr has been in U.S. custody since his capture – he has in fact, spent one-third of his life in U.S. detention without trial. His mistreatment during his imprisonment is well-documented and most of the evidence against him is circumstantial.
Instead of trying Khadr in federal court, the Justice Department has decided to try him in a military tribunal, which has less stringent rules regarding admissible evidence than those required in an normal court of law. He is to be charged with one count each of Murder by an Unprivileged Belligerent, Attempted Murder by an Unprivileged Belligerent, Aiding the Enemy, and Conspiracy. Though not as famous as the above photo of Khalid Sheikh Mohammed, here is a photo of Omar Khadr being treated for gunshot wounds at the time of his capture:
In addition to the use of the federal courts for suspects with a strong case against them and military tribunals for those whose guilt is less obvious, there is a potential third category of prisoners who will, according to the plan laid out by President Obama earlier this year, never be tried at all. They will simply be held without charges as long as the government wants to keep them. The Justice Department has also stated that if defendants should by some fluke be acquitted even after this careful choosing of venues to insure that they be found guilty, the government reserves the right to keep them locked up anyway.
This three-tiered plan of heads we win, tails you lose justice in which defendants are guilty until proven guilty and guilty even after they’ve been proven innocent is exactly the same plan instituted by the Bush Justice Department and vehemently opposed by all self-respecting Democrats from 2003 to 2008.
Glen Greenwald breaks it down thoroughly on his blog:
Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process. Those are called “show trials.”