Trial by Jury: the Public's Right to Judge the 9/11 Defendants

 When Eric Holder says he wants to try, convict, and sentence to death the accused 9/11 planners  Sen. Charles Grassley acts like Holder wants to bake them a cake.  Grassley objects in a recent  letter to  President Obama that

"A trial would provide "unprivileged enemy belligerents a venue to spew their hateful rhetoric; creating new public terrorist targets out of our federal courthouses.... providing non-U.S. citizen terrorists constitutional protections associated with criminal prosecutions; and providing terrorists more rights than our military men and women when they are subject to a court-martial. "

The rhetorical device employed by Grassley - a member of the Judiciary Committee - is to put the words terrorist, rights, and Democrat, Holder, or Obama  close together.  The smear tactic is widely employed by the political right, as this post on Think Progress details.  Grassley continues

Additionally, Attorney General Holder also referred some detainees who are charged with attacking the U.S.S. Cole back to the Department of Defense for trial via military commission.

In splitting the prosecutions into two categories, it appears that the Attorney General has created a system which allows the terrorist to select the forum for justice by simply choosing to select a civilian or military target. 

But the Administration has drawn the line at a perfectly sensible place: those who attacked civilians deserve to be tried before a civilian court.  As Justice Anthony Kennedy emphasized in a civil context in Edmonson v. Leesville Concrete, 500 U.S. 614 (1991) trial by jury is not simply a right of the litigant.  The opportunity to be a member of a jury  is a public right of citizenship which  may not be arbitrarily denied.  Justice Antonin Scalia has described the jury as the "spinal column" of democracy. Neder v. United States, 527 U.S. 1, 30 (1999).

The Sixth Amendment provides for  "speedy and public trial by an impartial jury in the state and district where the crime shall have occurred."  The jury is an important democratic institution.  The jury is  not only a barrier to arbitrary government conduct, but also is the bulwark of  citizens' participation in the justice system, of the public's opportunity to judge the accused.  Trial by jury brings  the judgment of the community.   That a court martial cannot accomplish.  There, even when we adhere to the Uniform Code of Military Justice, every participant - judge, jury, prosecutor, and defender - is a member of the military chain of command.

Regrettably  little attention has been paid to this important aspect of Justice Department's intention to try the accused terrorists in the United States District Courts.