Saturday, September 09, 2006
If a defendant is "innocent," it means he didn't commit the crime. If he is deemed "not guilty," it means that the prosecution was unable, for whatever reason, to convince the jury (or judge, in a court trial) to the requisite level of certainty that the defendant committed the crime. In the United States, innocent-in-fact defendants are rarely convicted. Much more often, the actual perpetrator of a crime is found "not guilty." A verdict of "not guilty" means the defendant walks, and under our system can never again be tried for the same crime, no matter what additional evidence comes to light, and even if he subsequently freely admits to committing the crime.
These concepts should be kept in mind by our elected representatives in Washington as they mull over what evidence can and cannot be used, and under what circumstances, in the tribunals that will be trying the men currently being detained at Guantanamo. There may be one or two "innocent" men among those being detained there, but I doubt it.
In trying those cases, if a prosecutor cannot use evidence collected by covert means without disclosing to the defendant (and therefore to the world) the hows, whos and wheres of its collection, it is likely that the prosecutor will decline to introduce that evidence if the source is still generating information of value to the military in fighting the Islamofascist terrorists. That evidence may make the difference between a conviction and an acquittal.
It would be, in my opinion, a very bad thing for America and Western civilization if any of those guys were set free to continue their jihadist activities. Better to detain them "for the duration" as permitted under Geneva Convention rules.
As it has become apparent in recent years in the context of technological progress, the law is running at least a decade behind real world events in many circumstances. That resistance to change is probably an immutable characteristic of our system of justice, and in most cases it's a good thing, or at least neutral. In the case of fighting what has been called The Long War, it is arguably a bad thing, and perhaps even a recipe for cultural suicide. I saw Prof. Jonathan Turley on Fox News Channel say that if we don't hold on to our principles, the terrorists will have won. Unfortunately, we may have to make the choice between being principled and dead or living (and repentant) ethical backsliders.