11A095 Gitmo by Jim Davies, 4/6/2011    

A quick word-search of the Zero Government Blog via its archive will confirm that I hold a very, very low opinion of the government "justice" monopoly. Nonethless, trials in the US do have one small merit over military ones: the jury is slightly less biased. To a defendant, that can mean a heap of difference.

So when Obama's hit man Eric Holder announced Monday that some of the in-limbo prisoners in Guantanemo Bay would, despite all Obama's electoral promises to close the place and try them on the mainland, after all be tried there by a military tribunal, it was yet another blow for America's tattered reputation for fairness.

In every government-court trial, the odds are heavily stacked against the accused. The government has brought the accusation. The government pays the judge (and that alone is enough to vacate the procedure of any impartial substance.) The government, naturally, pays the prosecutor. The government pays every other participant from stenographer to janitor, and it licenses the defense counsel to appear, appointing him too an "officer of the court" even though he is paid by, and supposed to represent, the defendant. Further yet, it selects the jury, discarding any who show any sign of probable sympathy for the accused; and pays the members a small fee. Defense can, it's true, take part in that selection - but if the govenment is a party to the trial (eg in a tax case) it can fill the spectator benches with ominous people with IRS name-tags who will glare at the jury and silently threaten an audit if they acquit. Nonethless, the jury is the one element in a Stateside trial that is not 100% beholden to government. That small advantage is not present in a military trial, in which every member is on the government payroll.

Now, those accused of executing 3,000 murders on 9/11 may be guilty as hell. But like everyone else, they are entitled to an impartial trial, by a jury of their peers - and uniformed members of their opposing military force are not their peers but their enemies. It is therefore fundamentally wrong to try them at Gitmo.

Worse yet: alleged ringleader Khalid Sheikh Mohammed has reportedly been tortured 183 times by waterboarding, during his eight-year imprisonment while awaiting the promised "speedy trial" - even if Fox News is right in saying that the figure is the number of pours, not the number of sessions.

Perhaps, again, he is guilty as hell. But in a justice system, that has to be proven beyond reasonable doubt. And if I were his defense counsel (which isn't possible because my adversary would forbid that, even if he wanted me) I would move for immediate dismissal on the grounds that (a) he has been kept waiting at least twenty times longer than is reasonable in a "speedy" trial and (b) while in custody he has been tortured. Would a government judge grant my motions? - probably not. But if the judge were impartial, there could be no question. In a military trial, however, even his counsel will be a government employee and so may not even dare to file such motions.

This volte face is a condemnation of Obama and the electoral process, for he has violated his promises all over the floor, and a betrayal of the most basic idea of justice, for which the Anglo-American world has so far held a fast declining reputation for excellence. Whether the outcome is a firing squad for Mohammed or not is (to all except him, of course) almost irrelevant.

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