Monday, October 16, 2006 8:43 PM

How the presumed innocent become guilty

During the public debate over the rights that detainees in Guantanamo and elsewhere ought to have, I've noticed a disturbing tendency to morph a terrorism suspect into a convicted terrorist. On today's NPR news broadcast of All Things Considered, Melissa Block interviews several Missouri voters. When they talk about security and civil liberties, they say what many folks must be thinking in the privacy of their own homes. Their comments cover the spectrum from civil libertarian to right wing hardliner.

Here's a transcription of that excerpt (done by me, so any mistakes are mine):

Melissa Block
When voter Mindy Lawrence thinks about homeland security, she sees an erosion of civil rights, and she brings up this issue, the suspension of the right of habeas corpus for terrorism suspects.
Mindy Lawrence
"The problem with that is, that's going to start leeching down to who do they think is a terrorist, who do they suspect is a terrorist. It's a really nasty little problem that's about to happen if they suspend habeas corpus for anybody. You're [We're?] losing the rights that our Constitution and our Bill of Rights gave us, in the name of fighting terrorism. There's gotta be a fine balance in there, and I don't think we've reached that balance at all. In fact I think we're losing that balance."
Faye Adams
"I don't really believe that the terrorists should be looked at in the same way that an American citizen should be looked at. I don't think that the freedoms that I enjoy should be applied to a terrorist who wants to kill me, who has sworn to kill me, who would even give up his life to kill me, simply because I'm a Christian. That's nuts."
Dorry Pease
"We've lived in fear since 9/11. It's constantly right there in front of us, terrorists. Our government makes us constantly focus on this type of thing. Personally I don't think we will ever totally eradicate terrorism, and I, I'm not saying we should stop fighting them, I'm not saying that at all. But I am saying that what our government is doing is not solving the problem. In fact it's making it worse. I would like to see us working towards, towards getting at the root of the fanaticism and the Islamic radicalism that's occurring. We're not doing that, we're just we're putting bandaids over a wound. I don't see us healing the wound at all, or even working towards it. I don't see where we're going at all. I feel less secure now, not necessary for myself and my husband, but I feel less secure for my children and my grandchildren, because I think they're going to be living in a much more dangerous world than what we have lived in, and that's what my concern is."

How many of us are like Mindy, or like Dorry? How many are like Faye?

A recent article in the Atlantic Monthly discusses the Lodi terrorism case in the context of religious awareness and identity. Umer and Hamid Hayat were charged with lying to FBI agents, and Hamid was further charged with providing material support to terrorists by attending a terrorist training camp. Hamid was convicted, and Umer's jury could not reach a verdict.

The Atlantic article, though long, is well worth the read. But I want to highlight one portion of it here, a discussion with the foreman of the jury, ex-military retired salesman Joseph Cote. The government's strategy in that case was to prosecute in order to prevent acts of terrorism from being committed; this means that the jury had to find that the government had proven that Hayat had provided material support or resources “knowing or intending that such material support and/or resources were to be used in preparation for, or in carrying out, terrorism that transcends national boundaries”.

But Hayat hadn't taken any concrete steps apart from providing the "material support" (attending a training camp--if even that were true). So the jury was left trying to discern whether Hamid had the intent to carry out a terrorist act, or not. Here's what the article says about how they made that decision.

This was their conundrum: Do you send a man to prison—ostensibly for training and lying—when the real question is whether he is a threat, and most of you don’t think he is? "That’s what made the verdict so tough," Cote said. "Because we thought in the gut, 'Maybe he may not do it.'" But what Cote called the "literal world," defined by the boundaries of law and evidence, did not allow for shades of gray.
During our interview, Cote said several times that the jurors were not asked to decide whether Hayat was capable of engaging in terrorism. "Believe it or not, that’s the only way I can sleep nights," he said. And yet they did decide it, Cote said, concluding that the evidence suggesting that Hayat would act—the scrapbook, the prayer, and so on—was stronger than the evidence that he would not. In essence, the prosecution’s strategy had paid off: there were no details of a plan, but Hayat’s purported predisposition—his words, more than his deeds—had become decisive. >

There you have it: there is no longer room for reasonable doubt, but only for "more likely than not". The risk, it seemed, was just too high to let a possible terrorist go free, even if he might be innocent after all.

I close here with the final words of the Atlantic article's author.

[Cote] argued that it was "absolutely" better to run the risk of convicting an innocent man than to let a guilty one go. "Too many lives are changed" by terrorism, he said. "So shall one man pay to save fifty? It’s not a debatable question."
I left his house and started back to Sacramento, passing the grounds of Folsom State Prison along the way. In the aggregate, at least, Cote’s instinct seemed to offer an appealing surety. Only when I was back on the highway did I see its practical flaw: prosecuting and imprisoning one innocent man would do nothing, in fact, to save the fifty at risk.