Killing ourselves: Why terrorists should be tried in military courts

In 1936, the U.S. Supreme Court threw out the convictions of three black Mississippi sharecroppers who had been viciously beaten by sheriff's deputies until, broken and bleeding, they confessed to the murder of a white planter.

"The rack and torture chamber may not be substituted for the witness stand," Chief Justice Charles Evans Hughes wrote. "It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for the conviction and sentence was a clear denial of due process."

The case of Brown v. Mississippi established a precedent in both U.S. and state courts. The Constitution's guarantee of due process of law was not mere rhetoric; it had teeth.

Will the trial of Khalid Sheikh Mohammed knock any of those teeth loose?

Having no intention of ever bringing the 9/11 plotter into a U.S. criminal court for trial, the Bush administration authorized very severe "enhanced interrogation techniques" to be used against him in order to obtain intelligence information about the al-Qaeda organization and any future plots against the United States.

Khalid Sheikh Mohammed was reportedly "waterboarded" 183 times.

The U.S. Constitution guarantees due process of law and the equal protection of the law to all persons, which means any law or procedure that applies to the rest of us will apply to Khalid Sheikh Mohammed.

And vice versa.

If the U.S. District Court rules that some of Khalid Sheikh Mohammed's statements made while in custody are admissible evidence against him, will that upend the precedent of Brown v. Mississippi?

Will "enhanced interrogation techniques" be evaluated on a case-by-case basis when Americans are arrested?

Suppose a suspected gang member is picked up on the streets of Los Angeles and the police, believing he has information about an imminent murder, beat him up during an interrogation in an attempt to save somebody's life.

Or suppose a child kidnapping suspect is arrested and the police, believing he has left the victim somewhere to die, break his arm in order to find out where he abandoned the child.

Now suppose they arrested the wrong guy by mistake.

You see the problem.

It is too dangerous to try Khalid Sheikh Mohammed in a U.S. court, not just because terrorists might attack the courthouse, not just because he might be let off on a technicality, and not just because the trial will give him a platform to spew his repulsive rhetoric. It is too dangerous because the trial of Khalid Sheikh Mohammed could easily undermine the legal precedents that protect Americans from abusive practices and wrongful convictions by law enforcement officials.

In 1934, Arthur "Yank" Ellington was pulled out of his house by a deputy sheriff, hanged by the neck from a tree, let down, ordered to confess to the murder of Raymond Stuart, and hanged again when he refused. Then he was let down, tied to a tree and whipped. When he still refused to confess he was allowed to return home, but a day or so later he was arrested and taken from his home, whipped viciously, and warned that the beating would continue until he confessed to the murder. He confessed. On no evidence other than his confession he was convicted in a Mississippi state court. The conviction was upheld in the state appeals court and by a divided state Supreme Court.

In 1936, the United States Supreme Court said the treatment of Yank Ellington did not meet the Constitution's standard for due process of law.

Is that a precedent this administration wants to overturn?

Well, Nixon went to China.


Copyright 2009

Source notes: Brown v. State of Mississippi, 297 U.S. 278 (1936). The spelling of Raymond Stuart's name is given as "Stewart" in the Brown v. Mississippi decision, but the local newspaper in Meridian, Mississippi, reported it as "Stuart," as cited in Richard C. Cortner, A "Scottsboro" Case in Mississippi, page 13 (1986). The brutal details of the case were recorded for history in the dissenting opinion of Mississippi Supreme Court Judge Virgil A. Griffith, joined by Judge William D. Anderson.

Editor's note: You might be interested in the earlier posts, "The trouble with waterboarding" and "The innocent tomatoes," and in the novel, The 37th Amendment, the story of a man convicted of murder in the year 2056, forty years after Americans repealed the Constitution's guarantee of due process of law. The 37th Amendment is currently in use in Northern Arizona University's Department of Criminology in an undergraduate class on wrongful convictions.

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