Something About The Law

This is a court of law, young man, not a court of justice

- Oliver Wendell Holmes

When Khalid Sheikh Mohammed and four other self-confessed perpetrators of the 9/11 attacks stand trial in the Southern District Court of New York  next year,  something about the law that’s unique to the justice system in such high-profile, polarizing instances will come to light.

Its indeed an “honourable” decision to put the detainees to task within the framework of the legal system (see The Hindu’s editorial today) – it would have been far more easier to hold the trial in a military tribunal – and probably come out with the death penalty. In a country where the death penalty has its ardent supporters, even its vocal opponents would’ve hesitated to challenge the verdict in such a heinous act. Sure, the prosecutors would’ve had trouble with issues of torture and waterboarding – but when the jurisprudence of a nation is emphatically in support of the ‘national security’ paradigm, in comparison to the ‘civil liberties’ one, no earth-shattering conclusions are expected.

So why is the case being referred to a civilian court, where the standards are admittedly higher than in military commissions? Does it signify the Obama administration’s commitment to human rights and fair trial? Yes and No. The whole process is angled at Gitmo’s closure, and to move the detainees to a high-security prison near Illinois. And a trial under federal laws is necessary to move them to federal soil, for which the Congress must be given prior notice. Incidental, is the encouragment given to a proper hearing; or rather, it is the price of closing Guantanamo Bay. After all, the detainees must be ‘disposed’ before the facility is closed!

But that’s a debate for another day. What the administration does not realize (or probably does, but is helpless) are the law’s ‘fancies’, to be a little dramatic. When KSM has been waterboarded no less than 183 times, and his comrades tortured to equal extents, will the NY Court accept a confession made under such circumstances? Will jurors,  sworn under oath and required to be selected from the Southern District – minutes away from Ground Zero – be really unbiased? Can the classic doctrine of ‘personal interest’ be really effective here, when jurors have lost friends, families and relatives? And at the end of it all, will the Court actually consider the confessions vitiated, even as the glare of the public eye gets stronger by the day?

There’s no point in calling these trials a farce, as we now realize that something about the law which is unique to cases of such nature. When Kasab, now being tried in a lower court in Mumbai for 26/11 confessed, Judge Tahilyani took the confession on record and sought to continue with the hearing. He could afford to do that, knowing full well that an expected result against the young terrorist will now be substantiated by his own words, while presenting the judgment as an evidence-based verdict. Similarly, when Khalid Sheikh and his fellows have confessed, the inadmissibility of such evidence is not really relevant. Sure, there are thousands of documents and testimonies waiting to be presented in Kasab’s and KSM’s case (heck, Kasab was caught on national television during the act). But if one looks closely, these are frivolous compared to that single statement of admission that the trial must extract, to mete out maximum punishment. But in the process of extraction, there is a disconnect between what society wants to hear, and what the law says about making the detainee say it. And therein lies the problem of balancing the law and pandering to public pressure.

Justice, as it is said, must not just be done, but must also seem to be done. Will justice seem to be done if Sheikh is let off with a lesser punishment,  if he decides to retract his confession  and claim a mere minor involvement in 9/11? (Kasab has sought to do exactly this). The law must act against torture, and the standard to award the death penalty is high. These standards must go beyond moral aspirations – but then, is the law’s justice equivalent to the people’s sense of it?

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Tags: Civil liberties, Rule of Law