Terror Suspects

When I was young, I remember hearing a the repeated phrase “innocent until proven guilty”. I don’t remember where I heard it from, but it was probably on one of those television crime shows. In any case, I realized it had great cultural significance, even though I didn’t quite grasp what it was. Regardless of whether they’ve given it much thought, I’m sure that somehow, just about every American is familiar with this phrase.

I also remember a man Socratically asking me, “Is it worse to let a guilty man go free, or punish an innocent man?” I thought about it for a moment, and wasn’t sure. The man (I think he was a lawyer), taught me a very important lesson about how the justice system works in the US. He said that the system is based on the notion that it is better to let a guilty man go free. I wasn’t sure what to make of that; I felt torn. How could it be alright to not punish a guilty man? Furthermore, doesn’t letting him back on the street pose a danger to the rest of society? I pondered this lesson in the back of my mind, hoping it would one day make sense.

Eventually, I realized that the two concepts are related. If it is worse to punish an innocent man, then we better be pretty darn sure that people that we punish are actually guilty. Not coincidentally, this is how the system is designed. Jurors must be your “peers”, not specially chosen to get a conviction. They must find you to be guilty “beyond a reasonable doubt”. As a presumed innocent man, you can’t be searched without “probable cause”. You can’t find yourself in “double jeopardy”. The defense gets to make arguments after the prosecution. The prosecution cannot bring evidence without letting the defense know about it ahead of time. And you cannot be forced to testify against yourself. Basically, we try to give the defense every reasonable advantage to avoid punishing an innocent man, even though it increases the risk of letting a guilty man go free. Many of these points come from the Constitution itself; therefore, “innocent until proven guilty” is one of America’s core beliefs around which the legal system is designed.

Without these provisions, we can’t truly be free. Imagine a country where you can be searched whenever the government feels like it (possibly without you knowing), or you go to trial and your words carry no weight, because you are presumed guilty, and must prove your innocence. This may sound foreign, or perhaps even ridiculous, but it is indeed the case in other countries, and should not be taken for granted. The reason other countries do it differently isn’t necessarily because they’re evil bastards; not punishing criminals is not only bad justice, it lets “dangerous criminals” back on the streets, where they can hurt more people. In other words, letting a guilty person go is bad for security. This is why we will always be tempted to tilt the system in favor of the prosecution, but we must resist that temptation if we want to maintain our American identity.

That temptation is strongest in times of insecurity. For example, if you were Japanese during WWII, you were presumed to be working with the enemy, which meant that you needed to be held in captivity despite there not being any evidence against you specifically. Therefore, it is no surprise that in this post-9/11 era, we are again facing this temptation. Perhaps somewhat surprising has been our reaction, in particular Guantanamo. Certainly it is disappointing. A couple of recent articles in the New York Times reminds us why we chose the legal system that we have; those articles show how we do wrong when we yield to this temptation.

At the beginning of one of those stories, Murat Kurnaz was relieved when he was handed over to Americans when he was detained in Pakistan. “Surely,” he thought, “they will know how to treat an innocent man decently.” Whatever respect he had for the American way of justice was soon shattered as he was shipped off to Guantanamo. By the end of his experience, I’m sure he had a much different view of American just, a much less admiring view. If it were not for his family working on his behalf, the US probably would never have let him go. This was a catastrophic failure for our goal of not punishing an innocent man. Unfortunately, Mr. Kurnaz’s story is not an isolated one.

All too often, people (particularly public figures) speak of prisoners at Guantanamo as presumed “terrorists”, as if those who brought the prisoners there have some magical ability to tell appart the innocent from the guilty. A much more accurate term would be “suspected terrorists”. Of course, putting a qualifier before the word “terrorist” really takes the force out of whatever it is people are trying to say about Guantanamo, and how we need to keep the prisoners that we have there locked up forever. It just doesn’t sound as good in a sound bite, not to mention the cognitive dissonance inflicted on the spearker.

I have no idea how many of the prisoners we have in Guantanamo are actually terrorists, but based on what I’ve read, the government doesn’t have a much clearer idea either. That’s why we now have this thing called “indefinite detention”. It’s not a prison sentence, because that would imply that the prisoners have been convicted in a legitimate trial. Instead, it is a state of limbo, a fiction that we’ve invented, because we’ve convinced ourselves (at least those in power) that it’s the only way to protect America from the evil-doers.

I guess if the Constitution doesn’t give us a way to convict people that we are sure are guilty, then it must be pretty broken. I wonder how the founding fathers would feel if we told them that. They must be turning over in their graves right now.

PS: The other Times story from the Sunday Review about a Guantanamo prisoner who was freed after being held for years is here.

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2 Responses to Terror Suspects

  1. Alon says:

    If you get a chance, grab a copy of this book:
    http://www.amazon.com/Public-Finance-Policy-Responsibilities-Limitations/dp/0521738059/ref=ntt_at_ep_dpt_1
    and read chapter 3 (chapters 1-2 are a good intro to chapter 3). Among other things, it raises the trade-offs in fighting terror.

    Thanks for an interesting read.

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