Civilian

by James Boyd

Created on: October 28, 2010

Should terrorists be tried in military or civilian court?

Before deciding on a venue, we should decide that anyone arrested for terrorism must be tried. Anyone arrested for anything deserves a trial. The idea that some people are too dangerous to release even though we cannot prove they have committed a crime is antithetical to our entire system. We cannot allow the police, either civilian or military, to determine guilt. That is the function of the judicial system. Even in the terrible days of the Soviet Union, those who were accused of crimes against the state were tried in a courtroom. There was nothing fair about the trials and the outcome was usually decided before the trial started, but they at least followed procedures for a semblance of lawful incarceration. Arresting and incarcerating someone without a trial leads to people with a reason to get somebody arrested providing false information. That is exactly what happened to some of the prisoners being held at Guantanamo. Some have been released, but others are still held because the military cannot decide what to do with them.

Everyone charged with a crime deserves a fair trial. It is a bedrock axiom of our system. Civilian courts are not perfect, but they function very well most of the time. The civilian system has a higher degree of fairness than military courts. Hearsay evidence is not allowed, and the defendant has the right to confront his accusers. That is how it should be done. Civilian courts have successfully prosecuted many people accused of acts of terrorism. Zacarias Moussaoui, John Walker Lindh, Richard Reid, Jose Padilla, Nidal Ayyad, Mahmud Abouhalima, Ahmad Ajaj, and Mohammad Salameh are all in prison because of convictions obtained in civilian courts.

One of the arguments used to support military rather than civilian trials is the possibility that some evidence necessary for a proper defense is classified. A military court might just deny access to that evidence. There are procedures in civilian courts for handling a defense request for classified material; it is not a new issue. Cases are handled on an individual basis, and the decision is made by the judge. If the government cannot find a way to prosecute a defendant because it refuses to divulge its sources of information, then the case must be tried without using that information by either side. Unfounded allegations simply do not count as evidence, and if a defendant cannot be convicted based on the evidence presented, then he must be acquitted.

Another difference between civilian and military courts is that evidence obtained by torture is not admissible in civilian court. That is how the law should work. No captive should ever be tortured in the first place, but certainly we cannot give credence to any statement obtained through torture, whether it is torture of the accused or someone who made a statement against him. A person being tortured is liable to tell you anything that he thinks will make the torture stop.

The prisoners in Guantanamo have been there for several years, and the military has no clear idea of what to do with many of them. A few are scheduled for military court, but most are just stranded. That is not how our justice system is supposed to work. Anyone arrested deserves a fair trial, and our civilian courts have a long history of dispensing justice in all sorts of cases, including accusations of terrorism. We are a nation of laws, not of men, and we should stay that way. 

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