A Fair Trial

by Michael Potemra

I thank our friend Anthony Dick for his thoughtful comments (post of 5:52). His concerns are legitimate, and they remind me of the debate about whether to proceed with the Nuremberg trials. The fact that the Nuremberg trials proved to be a universally recognized success does not predetermine that these trials will be a success; they may indeed turn out to be a fiasco, exactly as Anthony fears. But I would like to focus on just a couple of things he wrote: “The trials can’t possibly provide anything close to the level of objectivity that applies in an ordinary criminal-law setting. There is no way the defendants will get an impartial jury in New York. . . . The Obama administration . . . is truly making a sham out of the rule of law, by politicizing the trial process and pretending that these enemy combatants will be getting normal, neutral, dispassionate trials.”

Here, too, it’s not out of the question that Anthony will turn out to be right. But I suspect, and indeed hope, that he is wrong. In this regard, I thank all the people who wrote in response to my own post on this question yesterday; there are too many to allow me to respond personally to each. I’m grateful to those who supported my perspective, and even more so to some who disagreed with me — because the latter gave me even more reason to suspect that these defendants could get, perhaps not a “normal” trial, under the circumstances, but a fair one: “neutral,” “dispassionate,” and from “an impartial jury.”

These readers disagreed with my decision to welcome a trial here in New York — precisely because they fear that it will be a fair trial, in which the defendants may be acquitted. Here’s one: “I think what has people very worried is the perception that our legal system is so biased in favor of the accused that a conviction is hardly a sure thing. . . . Many things can happen which would result in our enemies walking away free; that is my worry, and I suspect the worry of many others.” Here’s another: “It is not that we fear 12 jurors cannot be found to mete out justice in New York City. It is that we fear that defense attorneys will obstruct justice and make this trial a circus of the worst kind. Can you say ACLU?”

In other words: Some people oppose this trial precisely because they fear it will not be a show trial. They recognize that there is always a chance that the prosecution might lose. I ask readers to stop for a moment and think about what that says about our country.

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