In his most recent book, “With Liberty and Justice for Some,” Glenn Greenwald charges that the U.S. now has a two-tier justice system – one tier for ordinary defendants, another for those prominent enough to escape any form of accountability for the crimes they fomented.
As if this wasn’t reason enough for national concern, there is yet another bias being played out in our Article III Courts. Legal experts see this bias as emanating from the prosecutorial anxiety associated with the acquittal of a defendant in a terror-related trial.
The widely-popular blogger for Salon.com says he expected a good deal of the fear triggered by the 9/11 attacks to have receded; instead, he says, it has grown more intense and irrational and more widely used than ever to obliterate some of the most fundamental values of constitutional law for defendants.
He is far from alone. A virtual posse of constitutional authorities have likewise concluded that we Americans have been terrified into shooting ourselves in the feet by dispensing with the very qualities that make us special.
Scott Horton, a well-respected lawyer who writes for Harper’s Online, says, “Especially after 9/11, prosecutors in what they assert are national-security cases have gained a decisive tactical advantage in court proceedings that makes a mockery of the pretense of a level playing field between prosecutors and defense counsel.”
He adds, “Prosecutors routinely flout their duties to disclose evidence that would assist the defense, and routinely make representations about the gravity of alleged threats which cannot be sustained in the courtroom and which turn out in the end to have been made on the basis of neither any evidence nor any reasonable analysis. There has been a tendency towards grandstanding that has effectively manipulated courts… and has led a good number of federal judges feeling they were deceived. But when the trial judges try to rectify this overreach, they find that conservative federal appeals court judges reverse them, demanding that they give deference to prosecutorial mumbojumbo.”
Summing up, he told Prism, “The ability of prosecutors to improperly influence trial judges is a question that sits right on the frontier of judicial independence. It would be going too far to say that American judges as a class are no longer independent, but on the other hand, particularly in national security cases, the deck has tilted decisively and improperly in favor of the prosecution.”
During the public controversy over the use of our Article III civilian court system to try terror-related defendants, the government’s legal experts were widely quoted as believing that civilian courts would provide much fairer trials for these defendants, while ensuring their conviction and imprisonment. The civilian court system was thought to be a mature institution, while Guantanamo’s Military Commissions were untried and, as one military defense attorney was told, the Military Commissions were intended to convict people.
Comparing outcomes in the two venues [military commissions vs civilian courts], there doesn’t seem to be very much qualitative difference.
One of those most infuriated by our publicity-heavy attempts to ramp up our “national security” anxieties is Dr. Jeanne Theoharis, a professor of political science at Brooklyn College. Dr. Theoharis was in the forefront of a substantial community grassroots effort to mount a robust defense for Syed Hashmi, US-born of Pakistani nationality.
Hashmi was a student of Theoharis at Brooklyn College. On the eve of his federal trial in 2009, he pled guilty to helping al-Qaeda. Hashmi, 30, was sentenced to 15 years in prison on one count of providing material support to a terrorist organization. Had he not pled, he would have faced a 70-year sentence.
The former Brooklyn College student was arrested in London in 2006. The government accused him of passing “gear” to al-Qaeda; the gear consisted of a suitcase containing rain ponchos and heavy socks.
After his arrest, he was held in twenty-three-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest.
Theoharis points to a number of specific liberties that were denied to Hashmi and other pre-trial defendants in terror-related cases. She notes with modesty that these are simply off the top of her head and attributes their application to the radical political views Hashmi embraced before he was arrested. Yet last time Prism looked this up, expressing such views was the most basic of our First Amendment freedoms.
Theoharis charges that people like Fahad Hashmi and Tarek Mehanna were targeted in part for their political speech and association, which formed part of the government’s case against them. Also, she adds, in many of these cases with FBI informants, what informants are sent into mosques to listen for, initially, are people voicing opinions and ideas critical of the United States.
Tarek Mehanna is an American pharmacist serving a 17-and-a-half year prison sentence after having been convicted of conspiring to help al-Qaeda.
Following the Mehanna sentencing, the ACLU released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.
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