Show Trials and Mass Imprisonment: Terror Justice Parallels Criminal Justice

The new detainee treatment bill passed by Congress is often contrasted with the higher standard of protection for defendants provided by both military and civilian criminal justice in the United States and accurately. Even the enhanced protections offered terror suspects placed on trial are a far cry from the protections accorded defendants in ordinary criminal trials. In another respect, however, the new model of what we might call "terror justice" parallels the US criminal justice system. Both operate an essentially bifurcated process. At one pole of this process are celebrity defendants, either by virtue of their previous fame or the infamy of their crime, or both (OJ Simpson). In the terror context these are the so called "high value" Al Qaeda prisoners that were recently brought to Guantanamo Bay and now likely face trial before military tribunals to be quickly formed under the new law and implementing regulation sometime this spring. (Officials Plan to Move Quickly for Terrorism Trials in the Spring). In the domestic criminal justice context, these are usually defendants charged with aggravated murders. In both cases the government's intent to execute the defendants makes the cases inherently more spectacular. Here also the process becomes the most protective involving adversary proceedings with rights to challenge the evidence before a somewhat neutral decision maker.

While there is likely to be a huge proceedural gap between the criminal trial of a capital murder defendant in civilian court (or military court) in the United States and that which Khaleed Sheik Mohammed is likely to face in a capital trial before a military commission sometime this spring, both differ greatly from the fate a far larger mass of anonymous "low value" criminals. At this opposite pole of both the terror and the criminal justice system, suspects move from the street the prison based largely on categoric judgments of dangerousness based on demographic considerations like race, age, and sex. In contrast with the show trials at the other pole, these mass prisoners move into incarceration based on largely ureviewable executive discretion. It is true that defendants in the US domestic system have a right to a lawyer and adversarial trial, but as Professor Markus Dubber forcefully argues in his book, Victims in the War on Crime, for large swaths of these defendants charged with possession crimes (like possession of more than five grams of crack cocaine) and possession/status crimes (like being a felon in possession of a weapon) these procedural rights are virtually meaningless (at least after suppression motions have been attempted) and most move swiftly to prison with only the marginal involvement of the adversary process and little or no public attention.