On Sept. 30, Anwar Al-Awlaki was killed in an airstrike by an unmanned U.S. drone. He had been located in Yemen by U.S. intelligence. Al-Awlaki was born here, but his parents took him back to Yemen when he was seven, so he had joint U.S. and Yemeni citizenship.
Awlaki was the imam at the Maryland mosque where Major Hassan was radicalized, then went on to murder 14 Americans at Fort Hood. He also had contact with three of the 9/11 hijackers, as well as the Christmas Day underwear bomber. His Internet sermons from Yemen were incitements to terrorism. He was a blatant terrorist.
Still, civil-liberties activists complained that as a citizen he should have been “arrested” and given a civilian trial. Arrested in a foreign nation, one which is only nominally anti-terrorist? Remember the bombing and near-sinking of the USS Cole? I’ll bet the families and shipmates of the 17 dead sailors remember. But those responsible either “escaped” or were released by the Yemenis. How’s that for “arrested”?
If Awlaki’s parents were here from Yemen on a student visa, or anything other than a permanent-resident visa, why should he be considered a citizen? Why cannot current policy be changed so that only children of permanent residents acquire citizenship at birth? Oh, my mistake, that would be politically unpalatable.
Critics object that even if Al-Awlaki had been captured and brought to Guantanamo to be tried before a military tribunal, some of the protections that the accused enjoys in a normal civilian trial would not apply.
But what is a “normal” trial in today’s America? Specifically, what kind of “normal” trial can we expect in a high-profile media event of worldwide interest?
Consider a “normal” trial that also aroused worldwide attention. Like a trial of terrorists, this trial attracted famous defense attorneys, as well as law professors and pundits for nightly commentary. And also like a trial of terrorists, this trial had racial overtones. I refer to the trial of football hero and media star O. J. Simpson for the murder of his former wife, Nicole Brown Simpson, and Ronald Goldman.
Yes, the Simpson trial was atypical. But what do you expect a terrorist trial to be? Do you think it will attract fewer lawyers wanting to be media stars? Do you think it will attract fewer TV cameras and foreign reporters? Do you suppose the judge and jurors will be less affected by media attention? Do you think there will be less fear of rendering the “wrong” verdict?
If you have an even bigger pile of manure, why would you think it will attract fewer flies?
● In the Simpson trial, there were two victims, and their photos appeared often in the media. In a terrorist trial, there will be many victims, perhaps thousands, but their photos will never appear. It will be even harder to remember that the victims are the ones whose rights deserve the most respect.
● In an effort to be fair, a majority of Simpson jurors were selected from the same ethnic group as Simpson. Polls show that 26% of American Muslims approve suicide attacks, and only 40% believe Muslims were behind 9/11. If the jury contains Muslims, what is the chance for a unanimous verdict that a finding of guilty requires? And if the jury contains no Muslims, we will be accused of prejudice. Heads they win; tails we lose.
● The judge at the Simpson trial had a good reputation, but the TV cameras and worldwide attention affected his actions.
● The defense attorneys were nationally known stars of their profession. The prosecutors were unknown outside their immediate circle. This affected how the judge, the jurors, and the viewers perceived them.
● The judge repeatedly ruled in favor of the defense. The appearance of racism had to be avoided. In a trial of Middle Eastern terrorists, we will have to avoid the appearance of racism, but also of nationalism and religious prejudice. We will have to bend even further over backward.
● A detective was grilled about his use of the “N” word in the prior 10 years, when he was discussing an idea for a screenplay with a writer. How was this relevant to the guilt or innocence of Simpson? But ruled inadmissible was Nicole’s diary, where in her own handwriting she detailed physical abuse and predicted O. J. would kill her. She then added photos of her bruises and locked the diary in a safe-deposit box.
But the jury never learned this, because it was “hearsay.” What a cop said years before in a fictional context was not “hearsay,” but what the victim wrote in her own hand in reference to the defendant was “hearsay.”
A terrible crime was minimized while procedural irregularities were magnified. A murderer was let go while the police were put on trial. Why would we think that a trial of terrorists would be any different?
● The defense hired numerous “experts.” One made a deep impression on the jury by proclaiming loudly, “Something wrong!” But though I watched closely, I couldn’t tell just what he meant.
● Every night on TV, pundits commented on the day’s events, adding their own spin. Having watched the trial, I could detect the spin. If I had not seen the trial, the spin would have been all I saw. And if the trial is not televised, the pundits’ spin will be our only source of information.
● Attorneys repeatedly mischaracterized testimony and evidence. Attorneys are not under oath and can say anything the judge allows. The jurors’ and viewers’ impression of the evidence then becomes not their own opinion of it, but the opposing attorneys’ spin on it.
● If attorneys are persuasive enough, they can make evidence vanish. What bloody gloves? What knit cap? What DNA? What bloody shoeprints? What hairs and fibers? What cut on O. J.’s hand? What history of abuse? What 9-1-1 call? What evidence? We don’t need no stinkin’ evidence!
● If attorneys are really persuasive, they can make the police lab, the FBI lab, and a noted private lab all seem unreliable. (“A cesspool of contamination!”) If they can do this with blood, hair, and fiber evidence, they can do it with explosives residue, anthrax spores, nerve gas, or nuclear material.
● Before the Simpson trial, an unpopular verdict in the first Rodney King beating trial resulted in a weeklong riot costing 55 lives and billions in damage. Jurors went into hiding because of threats – their names and addresses were leaked. And now, at the underwear bomber’s trial, prospective jurors express fear of retaliation.
When Simpson was acquitted, many people felt relief – there would not be another riot. How can jurors act without fear, when they are dealing with terrorists who cheerfully slaughter thousands? Could you?
● If Simpson had been convicted, there would have been endless appeals going on for years. Why would a terrorist trial have a different result?
● Despite bending over backward to be fair, and despite the jury’s rapid vote to acquit Simpson, we were still accused of being “racist” and having “rushed to judgment.” Why would our enemies, foreign and domestic, react differently to a terrorist trial?
No matter what we do, we will be accused of racism, religious bias, and rushing to judgment. Why try to please people who hate us?
● What will result if accused terrorists are subjected to years of “normal” legal proceedings? Hostages will be taken, and demands made for the terrorists’ release. Further terrorist attacks will be made to punish us for imprisoning their friends, and to force us to release them – a vicious circle.
● How can justice result, if the trial is viewed as an artificial game between lawyers, played by inconsistent rules interpreted by capricious judges, and not as a search for truth?
● How can justice result, if the trial is held under a threat of terrible violence if the “right” verdict isn’t rendered?
● A “normal” terrorist trial will do as much to deter terrorism as the O. J. trial did to deter murder – absolutely nothing. On the contrary, such a trial may encourage terrorism by showing us to be weak and foolish. We tried those directly responsible for the first World Trade Center attack in 1993. Did that deter 9/11?
● We had to put up with, “If it doesn’t fit, you must acquit.” But I really don’t think we can tolerate, “Someone nuked L.A., but it wasn’t they.”
If high-profile trials – actually media events – can be called “normal,” or if much of what happens in our legal system is “normal,” then the word has lost its meaning.
Are prolonged trials and endless appeals “normal”?
Are legal proceedings unrelated to reality “normal”?
Is using words as an octopus uses ink, to confuse and conceal, “normal”?
Is buying experts “normal”?
Is twisting the truth “normal”?
Is seeing the truth as whatever favors one’s own group “normal”?
Is playing to the media “normal”?
Is rendering a verdict out of fear “normal”?
Then by all means, let us give accused terrorists a “normal” trial.
But if these abuses are clearly not “normal,” let us try terrorists before a military tribunal − if they can be captured without endangering U.S. personnel. And if not, let justice come as it may. Equally important, let us take this opportunity to correct what has become “normal” in our legal system. It was supposed to be a justice system, wasn’t it?
There is a proverb that states, “Let justice be done, though the heavens fall.” We might update it to read, “Let justice be done, even if it falls from the sky.”
Dr. Stolinsky writes on political and social issues. Contact: dstol@prodigy.net
http://www.stolinsky.com