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There were so many other things that seemed to be good subjects for a post this week. Then this jumped out of today's New York Times:

Margit Arias-Kastell lost her husband, Adam Arias, in Tower 2. She, too, could not countenance the prospect of the suspects being defended by lawyers in a court in her city. She was among scores of relatives who had signed a letter opposing regular criminal trials for them.

"It’s totally unfair," she said. "Why do we have to constantly relive this? When do we get to be at peace? They should be hung."

and everything else that seemed worth writing about was washed away by the answer to that question.

The answer to the question is not a  difficult one, but bears repetition and, sadly, needs explication.  The answer is that we are the United States of America.

In the United States of America (and most common law countries which enjoy the legal system developed after Magna Carta was forced upon King John in the 13th century) the victims of and witnesses to the most horrible crimes are forced to relive those moments every day in courts all over this country and the rest of the common law countries.  Not once, not twice, but often many times they are required to tell strangers about the horrible traumatic things they saw or that happened to them and, at some point, to say those things with the person they believe is responsible for that crime staring right at them, with a lawyer who is entitled to ask them questions to try to show that they were wrong---that's not what happened, or this is not the person who did that to you.

The hero of so many conservatives, Justice Antonin Scalia has, indeed, been extraordinarily protective of this constitutional right of a criminal defendant to confront his or her accusers.  To Justice Scalia, and a majority of the Supreme Court, many modern devices to ameliorate the effects of this rule on the victims of crimes, or to prevent a defendant from benefiting from conduct which prevents the witness from testifying, violate the Constitution:

He says that while

the [Confrontation]Clause's ultimate goal is to ensure reliability of evidence ... [i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.


Crawford v. Washington, 541 U.S. 36 (2004).

The victims and witnesses to the horrible events of September 11, 2001 will never stop reliving them, but to force them to do so in public, in a court of law is not an easy thing to contemplate.  But our law does not have a special rule for cases that seem particularly horrible to allow that the person charged with its commission can be hanged for that reason alone. The crime of which you or a loved one is the victim is the worst one ever, yet the defendants in those cases get to force those witnesses to testify every day.

Neither, contrary to what even experienced lawyers who know better have tried to blather all over tv for a day or so, do we have different rules applicable to citizens than the ones which applies to non-citizens. Peter King once ran for Attorney General of New York, and Joseph Lieberman was once the Attorney General of Connecticut.  Somehow, though, this Lieberman (similar to a comment I heard from King) can

say with a straight face that:

"The terrorists who planned, participated in and aided the September 11, 2001, attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts"

War criminals?  These are people fighting a "war"?  No.  These people are conspirators, not warriors.  Wars, for better or worse, are fought by people wearing the uniform of a nation which feels aggrieved.  Other times, people fight against the police and military of a government which they believe to be responsible for oppressing them.  Flying airplanes into an office building where people are going to work, for an import-export company, a law firm, a stock broker, a government agency watching over stockbrokers, an insurance company, a newsstand, the guy who shines shoes, or sells flowers or tickets to a Broadway show or plays the piano in a lobby of the bank on the southeast corner of the Trade Center, is not an act of war.  It is murder.  The people who did it, who planned it, who paid for it and who assisted those who did all of that, are not anyone's war hero or  martyr to any political cause as an enemy of our country.  They are cowards, and they are criminals.

Can they get a fair trial?  I cannot see why not.  WE all know what happened that day.  That is not the issue.  The question will be whether it can be established beyond a reasonable doubt that these defendants committed acts in furtherance of this crime.  That somebody bragged that he was the mastermind, while claiming to being a prisoner of war, does not establish that he was responsible and I am sure that a good judge can find twelve jurors and a few alternates who will listen to the evidence and draw reasonable conclusions from it.  As has often been noted, if you were convinced on November 23, 1963 as to who killed President Kennedy, by the same date a year later you could easily have found a jury that needed evidence to prove it was Lee Oswald.

Will some of the evidence be suppressed because of how it was obtained?  Sure.  That's what makes us the country we are.  Politicians who utter the word "Miranda" with a sneer either do not know what they are talking about
or are simply trying to curry favor with people who do not value what this country is all about.  It was a Republican former Governor of California, after all, who wrote these words on behalf of the Supreme Court:

The ... practice of incommunicado interrogation is at odds with one of our   Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

Miranda v. Arizona,  384 U.S. 436, 458 (1966).

Many people, including the guy posting as Barth, believe that courts have misconstrued the requirements of Miranda and the like and suppressed statements which ought to be admissible evidence for a jury to accept or reject as the evidence directs, but we can be reasonably confident that only those statements which were unquestionably obtained by means which offend our Constitution will be excluded in this trial and, frankly, the case law that develops from this litigation will probably move the courts to a more appropriate place for use in other cases to come.

But nobody can keep practicing law in our courts, or prosecuting criminal cases if there are crimes which our courts are incapable of resolving.  The jury system does not always work as well as it might:  jurors, as with the rest of the public, are increasingly stupid and unable to understand some of the simplest concepts which is why, it seems,we often see acquittals in financial fraud cases, where some degree of complexity exists.

That, no doubt, will not happen here.  The Attorney General of the United States happens to be a career prosecutor.  He knows how to evaluate a case as do the many prosecutors more directly responsible for this trial.  Hours after the Trade Center, my own workplace for many years, fell, I heard jurors from the trial for the 1993 bombing explain on the radio why, based on what they learned from that experience, there was no question that Al Qaeda was responsible, at a time when the rest of us seemed confused.  That is what good prosecutors do, and what is likely to happen in this trial.  New York City can handle it.  Of that there should be no question. If it cannot, we are in bigger trouble than can be resolved by determining where to try this case.

One does not have to be a supporter of the death penalty to shed not a tear or lose a moment of sleep, if, after such a trial, these people are unanimously found to be guilty beyond a reasonable doubt and are thereafter executed.  And if and when that occurs, we can hold our heads up quite high and tell the rest of the world that that is who we are.


Since other obligations generally require that one full post appear under this name, a few other thoughts, which might have been more carefully made had not this KSM thing happened, should at least be listed here with the hope that someone else can fill in the blanks or might still be worth writing about a week hence.

For instance, there is this foolish debate about the supposed failures of the Obama administration or the more important one, about how a president goes about deciding what to do at a critical moment in a war far from our shores, which Rachel Maddow (naturally) explained well with the help of Gordon Goldstein.  

There really is an even more significant and truly overarching issue which strikes me every day particularly when I hearRegina Spektor sing, as she did in a movie over the summer which I still have not seen

Power to the people
We don't want it
We want pleasure
And the TVs try to rape us
And I guess that they're succeeding

The issues which were important last year, still are today.  You cannot expect to wake up every four years, wear a button, even go to a rally, and push a lever, then walk away and think that if your guy wins all will be well.  That's NOT how it works, as Regina might say.  Let's talk about that next week.

Originally posted to Barth on Sat Nov 14, 2009 at 09:33 AM PST.

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Comment Preferences

  •  Tip Jar (8+ / 0-)

    Important whining and Red Sox stuff at

    by Barth on Sat Nov 14, 2009 at 09:33:17 AM PST

    •  Very good diary (0+ / 0-)

      tipp'd and rec'd

      Let's remember that we should care about people even after they're born. - A. Grayson

      by IL JimP on Sat Nov 14, 2009 at 09:50:40 AM PST

      [ Parent ]

    •  right on (1+ / 0-)
      Recommended by:

      to make it simpler, let's hammer them on two things:

      1. they are afraid to bring these criminals to justice
      1. they want to give them special rights by treating them like war criminals instead of common criminals.

      l'homme est né libre, et partout il est dans les fers

      by zeke L on Sat Nov 14, 2009 at 01:29:05 PM PST

      [ Parent ]

      •  I think that second point is really on point (0+ / 0-)

        Start with the premise that we are at war with these people:  call them Al Qaeda if you wish.  (When we embark on a "war on organized crime" do members of the Mafia get special treatment as enemy combatants?)

        If we were "at war" with them, their prisoners get certain rights under Geneva, but the Bush Administration said they did not.

        If, as we decided to do by 2003, we treated them as prisoners of war, that was an act of grace on our part to protect our own military prisoners.  But under Geneva, which obviously Al Qaeda did not join, an enemy combatant must be in uniform.  That does not mean that others captured in theaters of war cannot be treated as prisoners of war. but that we are under no Geneva obligation to do so.  Decency and the hope that others will be as decent to our military compels us to do that.

        When it comes down to it, though, the Government is well within its rights, after reviewing what took place, to determine this was not an act of a military organization of any sort.  Pearl Harbor was, despite the fact that we had no declared war on Japan, nor they us, because it was carried on by uniformed members of that country's military forces against military targets.  If we captured someone involved in the attack or its planning it would violate the established rules of war to try him (or her) for an ordinary crime since, as underhanded, disgusting and low rent as it was, it was done in furtherance of hostilities between our two countries and their governments.

        Do we want to elevate what these people are, and what they did to that level?  Are they entitled to the respect accorded a military force acting on behalf of the government of a nation?  Was, for instance, the attack made on behalf of Afghanistan to further military hostilities against the United States?  If so, the attack on civilians at the WTC is a war crime, but surely there is no support for that, as bad as the Taliban were.

        No.  These were ordinary criminals---terrorists, in an ordinary way---but not engaged in any military effort against the United States.  To do so, indeed, makes the attack on the Pentagon to be on the cusp of legitimacy if not actually so.  Same with the USS Cole.  Both are military and subject to attack in war, whether declared or not.  To pose the question answers it.  It is, Mayor Giuliani, Attorney General Mukasey, Congressman King, Senator Lieberman,Senator McCain (who surely knows the difference) asinine to suggest that any of this were acts of war (criminal or otherwise).

        Important whining and Red Sox stuff at

        by Barth on Sat Nov 14, 2009 at 03:05:28 PM PST

        [ Parent ]

  •  Excellent (1+ / 0-)
    Recommended by:

    At some point, we can assume, it'll come out that KSM was waterboarded several times a day for days and weeks on end (because doing the same thing time after time and expecting a different result is the definition of republican thinking) and presumably that'll open up the entire, 'waterboarding isn't torture', 'yes it is,' 'no it isn't nyah, nyah, nyah' argument, and people will yet again voice the opinion that bad men deserve to be tortured and that the definition of a bad man is someone who kills people we like or who tries to stop us killing the people we don't like.

    I wonder when this is all going to stop, but since it's been going on for millennia, I don't suppose it will...

    "Tell me, what is it you plan to do with your one wild and precious life?" Mary Oliver, 'The Summer Day'

    by Airmid on Sat Nov 14, 2009 at 10:29:23 AM PST

    •  We don't torture. Except... (0+ / 0-)

      ....we managed to "elect" a president who missed that class.

      It doesn't matter, though.  What he said after torture is unquestionably worthless, but there is no doubt ample evidence beyond that which can be used to convict him and the others.

      Being tortured does not free a person from criminal responsibility for murders, no matter what they say or show on tv or what people may believe.

      Important whining and Red Sox stuff at

      by Barth on Sat Nov 14, 2009 at 10:55:11 AM PST

      [ Parent ]

      •  absolutely (1+ / 0-)
        Recommended by:

        Being tortured does not free a person from criminal responsibility for murders, no matter what they say or show on tv or what people may believe.

        otoh, being responsible for murder doesn't mean a man ought to be tortured - not in a modern democracy, at least.

        "Tell me, what is it you plan to do with your one wild and precious life?" Mary Oliver, 'The Summer Day'

        by Airmid on Sun Nov 15, 2009 at 12:13:34 AM PST

        [ Parent ]

  •  Boy ... (0+ / 0-)

    "It’s totally unfair," she said. "Why do we have to constantly relive this? When do we get to be at peace? They should be hung."

    My sympathies - but having lost a loved one doesn't necessarily make one wise or thoughtful. This sounds more like the sentiments of a member of a lynch mob than of a grieving wife.

    Slap it. Shoot it. Kaboot it.

    by adios on Sat Nov 14, 2009 at 11:40:45 AM PST

    •  I am not attacking her (at all) (1+ / 0-)
      Recommended by:

      The great New York Times series, Portraits of Grief, has allowed us to know just a little something about every person killed that day.  

      Here's what they said about Mr. Arias:


      A Lover and a Fighter

      After 15 lymphoma-related surgeries, Margit Arias never thought she would live to see as much of the world as her husband, Adam P. Arias, wanted to show her. So for their third wedding anniversary on Sept. 5, Mr. Arias, 37, surprised her with a globe encrusted with semiprecious stones.

      They had married 18 months after the stark diagnosis. He prodded and cajoled her through treatment. During chemotherapy week, he did everything around their Staten Island apartment. But he would deliberately put his cigar ashtray in the wrong place, to jolt Mrs. Arias, a neatness fanatic, out of her chemo stupor. When she felt stronger, Mr. Arias would take her to a movie, on trips out of town; he even nudged her onto a golf course.

      He was determined she would make it. A workaholic, he rose to a vice presidency at Euro Brokers with only a high school equivalency diploma. He was scary-smart -- at 7, he knew the names of all the presidents, their wives and their parties -- but not intimidatingly so, with a wicked wit and another life as a bar balladeer, covering songs from Tony Bennett and Meat Loaf.

      On Sept. 11, he was determined that others would make it, too. He lingered, prodding colleagues to leave. Last week, Mrs. Arias had her 16th operation. ''I didn't want to,'' she said. ''But Adam fought too hard to keep me alive.''

      What happened to her was "unfair" to say the least.  She has every right to grieve and to feel the way she does.  

      That is why criminal prosecutions are in the hands of the dispassionate, though.  They are not intended to be vindictive, but to assign responsibility, impose an appropriate punishment and deter others.

      Nothing, sad to say, will bring her husband back and, Mr. Mayor, a successful prosecution can only deter others.  It cannot prevent them from doing the same thing, but then again, summary execution would not serve that purpose either, as you well know.

      Important whining and Red Sox stuff at

      by Barth on Sat Nov 14, 2009 at 12:05:33 PM PST

      [ Parent ]

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