Thoughts from David Remes

By Benjamin Wittes
Wednesday, October 20, 2010, 1:19 PM

Habeas lawyer David Remes sent in the following in response to my response to Gabor Rona--who in turn was responding to this post. I am going to let David have the last word here:

Ben's response to Gabor Rona's comments raises more questions than it answers.

Unless I misread him, Ben wants convictions, and he wants them easy to get. Why? Where do guilt and innocence fit in? What are guilt and innocence in a legal context? Guilty means guilty of a particular offense. Every offense has elements that must be proved. Salim Hamdan's military commission jury found him guilty of material support but not conspiracy. Should the system have made it "a little easier" to convict Hamdan of conspiracy, because we like convictions?

Ben says he wants a military commission trial to "proceed in a fashion that comports with the law," but what is "law" in a system fashioned to produce a desired outcome? What is the "fundamental fairness" that Ben says he wants? If the purpose of a 9/11 trial is "to validate a judgment made long ago," it's curious to justify the trial as "a discipline we put ourselves through because we we are the sort of people who have trials and make the government prove things." Exactly what is there left to prove?Ben says it's inconceivable that we would release KSM if a military commission or civilian court jury acquitted him of the offenses charged. Ben may be right, though stranger things have happened. But the legal basis for holding him would not be that he was found guilty of a crime; it would be the claim that he's detainable under international law as a prisoner of war, by one name or another. That is to say, to continue to hold KSM, a conviction would be sufficient, but under this view, not necessary.

Monday evening, at the Avalon Theatre here in Washington, I saw "Nuremberg" a fascinating 1949 documentary about the main Allied war crimes trial. As a prosecutor, Justice Jackson believed the evidence supported convictions of the defendants on the offenses charged. But Jackson wanted even more for the proceedings to be fair, and seen as fair. He did not want convictions for the sake of convictions. He'd be horrified by the thought of a judicial process designed to make convictions easy. These words from his opening statement ring in history:

Unfortunately the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves.

After the first World War, we learned the futility of the latter course. The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war.

It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice.

Some of the Nazi defendants were convicted of all offenses charged; some were convicted of some of the offenses and acquitted of others; and some were acquitted of all charges and released. Few today question the fairness - or the legitimacy - of these proceedings or their verdicts. When and if the 9/11 defendants are brought to trial, we should follow the example set by Nuremberg.