Why we should not use criminal jurisprudence for juding accused terrorists

Submitted by Stuart Fagin (United States), Jul 23, 2014 at 12:05

Those who would apply a criminal jurisprudence to accused terrorists seek to uphold a key tenet of our justice system: the error of convicting the innocent is far more egregious than the error of failing to convict the guilty. This tenet is hard wired into our justice system by (a) the "presumption of innocence" which places the burden of proof on the prosecution, (b) requiring a "beyond reasonable doubt" standard of confidence for a guilty verdict, unanimous amongst the jury. These practices make it very unlikely we convict the innocent.

However, in structuring our justice system in this way, we inevitably create a tendency for committing the conjugate error of failing to convict the guilty. A highly publicized example of this tendency was the original O.J. Simpson trial where, after the trial, several jurors stated that though the evidence showed him very likely to be guilty, they had reasonable doubts and therefore had to vote to acquit.

This policy is fitting when judging the guilt of an individual accused of burglary, or even murder. We bear the likelihood additional burglaries or murders from the guilty we fail to convict, if it creates a greater assurance that we don't convict the innocent. However, this calculus should change in dealing with contemporary terrorists, because the threat is so massive.

Suppose a group of terrorists are apprehended while attempting to set off a nuclear device in New York City. If the evidence shows these terrorists are very likely to be guilty, but there is still reasonable doubt, the jurors must vote to acquit. The terrorist is then free to pursue his objective of destroying the city.

Other factors rendering our criminal justice system inappropriate for dealing with terrorism are: (a) the impracticality of carrying out evidentiary processes in battlefield settings, (b) the problem of divulging classified national security measures in open court, (c) the need to maintain perpetual personal security for judge and jury, (d) the conflict between prosecution and prevention; the need to allow conspiracies, when detected, to proceed to the point where criminal prosecution is possible, versus the risk that the conspiracy may proceed to the point where it is carried out, and (e) the difficulty in extracting information from a defendant who is "lawyered up".

The Bush administration policy was to use military tribunals for judging terrorists. This policy strikes the balance in conferring a measure of jurisprudence to those accused of terrorism, while satisfying national security concerns

Note: Opinions expressed in comments are those of the authors alone and not necessarily those of Daniel Pipes. Original writing only, please. Comments are screened and in some cases edited before posting. Reasoned disagreement is welcome but not comments that are scurrilous, off-topic, commercial, disparaging religions, or otherwise inappropriate. For complete regulations, see the "Guidelines for Reader Comments".