Why are We Trying Them if We’re Going to Detain Them Regardless of the Verdict?
Under “John Loughlin on the Civil Trial of Terrorists“, Joe Bernstein observes,
Nor can you explain how it is that Holder admits before a Senate committee that he doesn’t know the consequences of an acquittal after these people are brought into this country under color of law to stand trial.
Quoting Attorney General Eric Holder in front of the Senate Judiciary Committee:
And so that if – if there were the possibility that a trial was not successful that would not mean that that person would be released into our country.
Does that mean that they might be released in another country? Or that they would not be released at all?
Senator Jack Reed got more specific a couple of weekends ago on FOX News Sunday with Chris Wallace:
WALLACE: We’ve got about 30 seconds left. What if one of these guys gets off?
REED: Well, if — that is highly unlikely. The evidence is compelling.
WALLACE: But there are no guarantees in a trial.
REED: There are no guarantees, but under basic principles of international law, as long as these individuals pose a threat, they can be detained, and they will.
WALLACE: But — and very briefly — if someone is acquitted and then he’s picked up again…
WALLACE: … what’s the message that that would send to the rest of the world?
REED: I do not believe they will be released, because under the principle of preventive detention, which is recognized during hostilities, we held…
So Attorney General Holder has implied and Senator Reed has stated outright that if the five terrorists are acquitted, we would simply detain them again.
Let’s understand this scenario. If these five are found guilty, we would “detain” them by sentencing them to long jail terms. And if they are acquitted, we would also detain them, just under a different rationale; i.e., that they pose a threat to the United States?
If we detain them after acquittal, wouldn’t that completely negate the principle – a demonstration of American justice and due process – for which the Obama administration has chosen a civilian rather than a military judicial venue? After all, one of the big payoffs of our – and any truly just – judicial system is that the defendant walks free if acquitted of the charge, he is not escorted back into jail.
Secondly, if they are so much of a threat as to warrant detention after a trial, are they not just as much a threat now? And does that not obviate the necessity to try them? Stated more simply, how will their threat status have changed – increased – after a trial? In the event of acquittal, will it not, in fact, have considerably diminished because a court will have declared them “not guilty” of plotting or committing violence against the United States?
Contrary to the Attorney General’s assertion when he announced this decision, the risk of acquittal is higher in a civilian trial as opposed to a military tribunal. Now, there would be two substantially different consequences to an acquittal. The first would be an abrogation of justice. The second would be damage to political careers. The former is obviously far more important. Yet the politicians making and supporting this decision as to judicial venue seem more concerned about the latter given that they appear willing to telescope the execution, and therefore, the principle, of the former in the event of an unpalatable outcome.