You Can’t Have It Both Ways

If you believe what Rudy Guiliani has to say, then it is a bad thing that Khalid Sheikh Muhammad will be tried in open court. It sets a dangerous precedent and changes the “war on terrorism” from a war to a law enforcement issue. It will give the defendant what he wants – publicity.

If you believe what Rudy Guiliani has to say, then it was a good thing that Zacarias Moussaoui was tried in open court. It gave the defendant his day in court. It showed that we were a nation of laws.

Mr. Giuliani was on one of the “talking heads” shows that I watch. The former comment was said live on the show, in response to the later which was a quote of his from 2006 which the commentator asked him about. You can’t have it both ways. Is it a good thing or a bad thing to try the people who were responsible for the attacks on the United States on September 11, 2001 in US criminal courts? I think that the reason for the confusion may be clear when you look at the former mayor of New York’s other comments from yesterday:

“The administration has quit using the phrase the war on terror.” – Funny, but isn’t that exactly what the previous administration did when they decided to re-brand it as “The struggle against violent extremism” in July of 2005?

“Trying him in open court presents the possibility of acquittal.” – But isn’t that one of the founding principles upon which our legal system is built; the concept of the presumption of innocence? Granted, this person has been tried and convicted in the media, and (if the press reports are to be believed) he has boasted about being the mastermind of the “9/11 Attacks” but he is still entitled to his day in court.

“The administration has invented the possibility of military tribunals…” – Really!? The current administration invented the possibility of trying someone in a military tribunal? I suppose I must have been imagining the previous administration proposing/doing exactly that with the detainees that actually got any form of a trial.

Let’s face it. What is happening is not perfect, but then neither is our system of justice. It is, however, the only system we have. And as imperfect as it is, it is better than that present in many other places.

In some countries, a woman can be stoned to death just because her husband accuses her of infidelity. She has no right to defend herself or to present any evidence to exonerate herself. Okay, I can hear you whining that I have picked an example of a backward extremist country to make my point.

Okay, I’ll grant you that one. Let’s take a look at one of our most cherished (and maligned) rights as far as criminal proceedings is concerned. Along with the presumption of innocence, we have the right not to present self-incriminatory evidence. The fifth amendment (in case you have either not read it or do not remember it from your high school civics classes) reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Why do we have this right not to testify against ourselves spelled-out in our constitution? Because no such right existed in England when we seceded from them in 1776. The system of English Common Law at the time had no assumption of innocence. It had no protection against self-incrimination.

“But that’s what? 200 years ago?” I hear you ask. 233, but who is counting?

What’s more, according to discussions I had with my friends while living in London, no such assumptions or protections exist today. A prisoner in the dock of the Queen’s courtroom may be compelled to answer any question put to them regardless of the consequences. Failure to answer or to answer truthfully is an offense in itself.

Now, granted, it is an offence to lie in court, it’s called “perjury” but in an American court, if you ask me if I had committed an offense, I have the right to say nothing. You (as a juror) will be instructed by the judge that you may not draw any conclusion from the silence. And there are good and valid reasons for this right.

It keeps the power of the government in check and prevents them from arbitrarily pulling people into court on any old claim the want to make. If the government is going to pull you into court, they are going to make sure there is reason for you to be there first!

So, is it a good or a bad thing that we are going to try the architect of the 9/11 attacks in a US court. The answer is, quite frankly, both. It shows the world that we are not afraid to do so, that our justice system is capable of withstanding the attacks he is accused of launching against it. It is bad because it does give him a platform to spread his propaganda from. But that is the cost of freedom.

If you want the right to speak your mind, you have to extend that to others. Even others you disagree with. (I know that people on both ends of the political spectrums have just cringed, but it cannot be helped.)

Wherever you are today, I hope that you will exercise the freedom of speech you have.

Don Bergquist – November 16, 2009 – Lakewood, Colorado, USA