Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

The presumption of innocence and prisoners of war

Jerry Stratton, December 27, 2009

I’ve been having a few epiphanies this year. Honduras convinced me that term limits are a good idea. Now, the Khalid Sheikh Mohammed trial—more specifically, political justification of it—is starting to convince me that we need to be very careful extending United States civil rights to prisoners of war.

As I’ve written in the past, I am very sympathetic with the idea that if we’re holding prisoners forever, we must afford them the same civil rights we would to anyone else we imprison. But If we’re going to try prisoners of war in civilian courts, we need to do it right. Otherwise, we’ll be watering down our own rights.

The problem is the presumption of innocence. Our rights cannot last without it. If we require that trials come to a pre-determined outcome we have completely dismantled our system of justice.

The normal rules of war assume two known countries fighting. Prisoners of war are expected to be prisoners until the war is over; then they’re returned to their home country. The assumption was that once a country loses, it loses. When their soldiers return home, they’ll go back to being chefs, bricklayers, and mechanics—just as happened with most of the German soldiers captured in Germany, most of the Italian soldiers captured in Italy, and most of the Iraqi soldiers captured in Iraq.

With our current prisoners, that isn’t true. When they return home, they’re going to continue fighting—against “their own” governments as well as against the United States.

Holding them forever without some sort of trial is unacceptable. Trying them in our own court system, however, given the statements that have come out of the current administration, runs a very real risk of reducing our rights. If Khalid Sheikh Mohammed’s lawyers raise the issue of how his civil rights have been abrogated, how will the justice system respond? Will they be willing to throw out the case on a “technicality”? Or will they water down our civil rights to ensure a conviction?

I can’t imagine that Mohammed’s ordeal is in any way legal if it had happened to a U.S. citizen. But what happens when that goes to the Supreme Court? Are they willing to rule in Mohammed’s favor, knowing he’ll go free?

Are they willing to rule that it’s okay to use jurors who are prejudiced against the defendant? It’s hard to imagine anyone in the United States who isn’t familiar with the World Trade Center bombing.

When we send someone to trial, they are presumed innocent. Are we truly willing to presume that terrorists captured in combat are innocent? A terrorist who was behind the 9/11 attacks? I don’t think I am, and it doesn’t sound like the current administration is either. But we can’t have the attorney general poisoning the jury pool by calling anyone unwilling to convict a scaredy-cat. Unwilling to convict is the default choice. Nor can the President of the United States promise a conviction and the death penalty, for the same reason. “I’m not trying to prejudge, but he’ll be convicted and put to death” is prejudging, and it’s chilling to hear that about someone on trial in our civilian courts. It is absolutely wrong for the President and Attorney General to say things like that about an ongoing civilian trial.

The administration is making the Bush-era military commissions sound like a reasonable compromise. I’m not “cowering in the face of the enemy” when I say that I’m afraid of what our government will do to ensure a conviction. Khalid Sheikh Mohammed will not be released on a technicality; if it looks like he will be, then that technicality will be removed from the law. The problem is that “technicalities” are often our civil rights.

  1. <- Iranian crisis continues
  2. Ten years ago today ->