Mar 14, 2014
Taking the Justice Out of the Justice System
Posted on Aug 21, 2011
By Karen J. Greenberg, TomDispatch
These cases and others like them have, of course, been fodder for all the usual critics who consider anything but a 100% conviction rate on all charges in all cases to be a sure sign not of the justice system’s strength, but of its fundamental weakness. And yet, such cases have showcased just how effectively the system still works, in a more nuanced way than in the previous near-decade, as well as in a subtler and more just way than Washington has managed to approximate over that same period. Despite the fears, pressures, and scare tactics that are entangled with all such terror cases, we now have living proof that juries can think for themselves, and guilt can be a partial matter, rather than a Washington slam-dunk.
Of late, federal judges on such cases also seem to have been signaling to the government’s representatives that they must be more restrained in their approach to national security cases, both in and out of court. In late June, for instance, during the sentencing of three of the men convicted of conspiring to bomb two synagogues in Riverdale, New York, and to launch a Stinger missile aimed at aircraft over Newburgh’s Air National Guard Base, Judge Colleen McMahon struck back at the government’s case. “I believe beyond a shadow of a doubt,” she said, “that there would have been no crime here except the government instigated it, planned it, and brought it to fruition. That does not mean that there was no crime. The jury concluded that you were not entrapped, and I see no basis to overturn their verdict.”
In the Drake case, Judge Richard Bennett was similarly distraught about the evident excesses in the government’s approach. At sentencing for the single minor count to which Drake agreed to plead, the judge bluntly refused to impose the $50,000 fine the prosecution was pushing for on the grounds that punishment had already been administered—prior to the court process. “There has been financial devastation wrought upon this defendant,” said Bennett, “that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way. And it’s very obvious to me in terms of some of the irritation I’ve expressed… not only my concern over the delay in this case… [but also the prosecution’s] inability to explain … the delay in this case… I think that somebody somewhere in the U.S. government has to say… that the American public deserves better than this.”
In the recent jury decisions, as in the growing expressions of judicial dissatisfaction, an optimist might find signs that the system is finally starting to right itself. On the other hand, a pessimist might come to the conclusion that the government will, in the future, simply put even more energy into avoiding the court system.
Karen Greenberg is the executive director of the New York University Center on Law and Security, a TomDispatch regular, and the author of The Least Worst Place: Guantanamo’s First One Hundred Days, as well as the editor of The Torture Debate in America.
Copyright 2011 Karen J. Greenberg
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