Let's not squander our moral capital
The Bush administration has announced it will seek the death penalty against six of the men being held as detainees for their involvement in terrorism against America.
I have both prosecuted and defended capital cases for more than 15 years, and I am a vocal supporter of the death penalty in appropriate cases. If it is proved that these men masterminded the murder of more than 3,000 people, such a crime would indeed warrant the death penalty. But I'm absolutely opposed to seeking death against these men under the terms of the military tribunals the administration has put forth.
Defending the decision on PBS' "The News Hour," former Associate White House Counsel Brad Berenson explained that for most observers the trials would look almost exactly like one that would be held in one of the 37 states that have capital punishment.
"There's only a 10 percent difference," Berenson claimed.
But in making a decision to execute someone, 10 percent is an unacceptably massive difference.
Under the terms of the tribunals, trials would take place at Guantanamo Bay, Cuba, at a location called Camp Justice. Each case would be decided by a panel of military officers, one of whom will have legal training. The rest will essentially act as jurors. In no way can a panel of U.S. military officers be compared to a jury of the peers of these terrorists. The rules of evidence will be "relaxed," meaning that hearsay evidence will be admissible.
The argument is that national security could be compromised if the source of some of the evidence is revealed. But that's no different from being unable to produce an informant against a Mafia killer because the witness is afraid to testify. In our system of justice, the defendant who faces death gets to confront his accusers, and hearsay is allowed only in very few situations. One of them is not that the witness is a secret agent.
Many of us among the 70 percent of Americans who believe the death penalty is appropriate for the worst of the worst killers would agree that the crimes these men may have committed are indeed worthy of death. We who support the death penalty believe it to be an affirmation of the importance of life. But the devil is in the details -- and that's "due process" in our legal system.
We squander our moral capital if we take a shortcut through Camp Justice to avoid having to prove these cases to the necessary level, and with a quality of proof that would pass muster in a trial for stealing a car. The same rules of evidence apply to the shoplifter and the murderer.
Threatening or applying the death penalty in the manner under consideration by the Bush administration will undermine confidence in the American system of justice at home and abroad. The death penalty has proved to be a deterrent, but we must ensure that every defendant is factually guilty and warrants the ultimate punishment -- even for those who might prefer to be martyred.
It may well be that the government has a valid right to detain combatants in an undeclared war and deny them the same rights as citizens. But that's a far cry from executing them without due process. It may be just to imprison these terrorists for a very long period of time -- perhaps their entire lifetime -- but it would be wrong to execute them without affording them the very cumbersome but necessary rights that the American judicial system affords people it seeks to judge.
Joshua Marquis, district attorney of Clatsop County, is a co-author of "Debating the Death Penalty."©2008 The Oregonian