NJ Law Journal: 9/11 Planners Should Face a Jury

 In Congress and in remarks at the U.S. Constitution Project's awards dinner  Attorney General Holder this week defended the Administration's plans to use both Article III civilian courts and Military Commissions in trials of persons charged with terrorism.  The independent Editorial  Board of the New Jersey Law Journal  has endorsed the plan to try  9/11 planners before a civilian jury.

Editorial

The Public's Right To Judge

New Jersey Law Journal

April 16, 2010

When Attorney General Eric Holder Jr. 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 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 Senator goes on to say....

"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."

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.
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 not only a barrier to arbitrary government conduct. It is the bulwark of citizens' participation in the justice system and the public's opportunity to judge the accused. A jury brings the community's judgment. A court-martial cannot, as under the Uniform Code of Military Justice, every participant — judge, jury, prosecutor, and defender — is a member of the military chain of command.

This editorial was published in the April 16, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.