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February 3 2010

Trial by Jury?

Nicole Kurokawa Neily

There's been a lot of buzz recently about the trial of Khalid Sheikh Muhammad (the alleged architect of the 9/11 attacks). As IWF junior fellow Megan wrote yesterday, the trial was originally set to be held in New York City but now seems likely to be held elsewhere. Dana M. Perino (former press secretary to President George W. Bush) and Bill Burck (a former federal prosecutor in Manhattan and deputy counsel to President Bush) assert in today's New York Post that the trial should not be held in a civilian court at all, because the proceedings have become so tainted.

KSM and his cohorts will be tried in a military commission at Guantanamo Bay -- because the administration has made it almost impossible for them to get a fair trial in a civilian court.

In a typical criminal case, the government says very little outside of court, and what it does say in public is limited to a plain-vanilla recitation of the accusations with liberal use of the word "alleged" before the charges, as well as a reminder that everyone is innocent until proven guilty. This is for good reason: A defendant has a right to a fair trial, and pretrial publicity that is unduly prejudicial will deny the defendant that right.

And it's hard to imagine a trial that has had more prejudicial pre-trial publicity than the one planned for KSM. His lawyer will demand that the case be dismissed because it is impossible for him to receive a fair trial. It will be quite a challenge to argue the contrary.

Administration officials seem to have gone out of their way to make life easy for KSM's lawyers. Attorney General Holder, the nation's top law-enforcement officer, has said KSM is guilty and should die. The president has said more or less the same, though he has tried to qualify his statements.

Regardless of your views on where KSM should be tried, Perino and Burck raise an important point. Can Muhammad and co. have a fair trial in New York City - or, indeed, in the country, at this point? If the answer is "no," then what can be done? Should we settle for mostly untainted jurors, and how do we square that with our fundamental principles? The concept of "innocent until proven guilty" is one of the cornerstones of the American justice system, and prosecutors, as representatives of the state, have a special duty to ensure that a trial by jury is as fair as possible. (Let's not forget the overzealous prosecutor in the Duke lacrosse case and his campaign to convict innocent defendants in the media.) This is not to equate KSM and the innocent lacrosse players - but what rights do the accused have, if any?

John Adams once said "we are a nation of laws, not of men." Although it may be naïve to do so, I believe that our laws should be applied equally to all people - regardless of how heinous their (alleged) actions may be. To do less would be to compromise the very America that our enemies seek to undermine.

Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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