Defending his decision to give civilian trials to five suspected terrorists, Attorney General Eric Holder boldly expressed his full confidence that the government had ample evidence to convict those men.

“Failure is not an option,” Holder told the Senate Judiciary Committee on Nov. 18.
That was an interesting statement, and the sentiment it expresses has been repeated constantly by Obama administration officials and other Democrats over the past few weeks. That sentiment is problematic, and it made me rethink my initial reaction to these five men being tried in a civilian court as opposed to a military tribunal.

On the campaign trail, President Barack Obama promised openness and justice on various fronts. The most significant among his promises was to close Guantanamo Bay, give fair trials to those prisoners who can be charged and properly treat those who cannot. I was relieved to hear that America would finally emerge from the blind vanity that sanctioned perpetual detainment of alleged military combatants. We finally realized America is better than that, and it’s time to prove that to the world by having real, fair trials.

But when deciding whether to try these particular terrorism suspects in a military tribunal or in a civilian court, the Obama administration missed the point entirely. In this case, and under these circumstances, military tribunals should have been the obvious choice.

To achieve justice (uphold the law, abide by the Constitution) the prisoners must receive as fair of a trial as possible. There’s arguably no greater element to a fair trial than the principle of “innocent until proven guilty.” Even the brutally reactionary post-Reconstruction Supreme Court agreed that the presumption of innocence is crucial to the Constitution’s exposition on the rights of an accused, as shown in Coffin v. United States (1895). But it’s clear from the statements of those who support trying the five suspects in a civilian court that they pay absolutely no heed to this Constitutional concern.

Now, I’m not so naïve as to think that the presumption of innocence is treated as God’s word in the average criminal trial. I’ve read enough transcripts of jury selections and jury instructions to understand that many judges, prosecutors and jurors see the presumption of innocence as a triviality — not a supreme declaration, but rather an inconvenience they must get around.

Potential jurors who are questioned during jury selection often espouse amusingly abhorrent notions of the rights of the accused. “Why on Earth was he arrested if he is presumed to be innocent?” jurors might ask. Judges will repeat that an arrest is not an indicator of guilt, and neither is the fact that a trial is being held. But jurors will often give a knowing smile and proceed to do exactly what they are told not to do — use circumstantial perceptions as part of their finding of guilt or innocence.

This is a deep, perplexing problem. Anyone who disagrees should read the transcript from an average criminal trial to see what paltry evidence jurors will convict on. It’s simply undeniable that they let their preconceived notions about a suspect, his background or even the nature of the crime undermine their mandated presumption of innocence.

But it’s something else entirely in the case of these five suspected terrorists. We may all know that these people are guilty. But under no circumstances is it appropriate for a prosecutor (which is what Attorney General Holder is in such cases) to guarantee a conviction, which creates a scenario where no other outcome is conceivable. It’s never okay for everyone to assume that a conviction will happen, at least not if you believe in fair trials.

But such an assumption is integral to the Obama administration’s decision to try the suspects in civilian court. Indeed, administration officials have repeatedly defended that decision by assuring everyone that convictions will happen. That puts a unique pressure on the federal court to convict, one that probably won’t matter but certainly shouldn’t exist.

A far better option would have been to try the five men in a military tribunal, a more controlled setting where the accused have ample rights and where improper political pressure to convict is absent. We’d surely get a conviction in either type of court, but the one in a controlled, un-sensationalized military tribunal would be far more legitimate.

If the whole point is the integrity of the process, then bringing these suspects to a civilian court under these circumstances was absolutely the wrong decision.

Imran Syed can be reached at galad@umich.edu.

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