Having recently acquired a little portable MP3 player for a project at work, I've downloaded to it a batch of podcasts that I've been collecting for some time, various bits from some talk shows on my local NPR affiliate and some This American Life shows, and have been listening to them here and there. Some of them are recent; some are from as far back as 2005.
One that I've just listened to is about the Supreme Court, and includes a statement from Justice Antonin Scalia in which he says that the “enemy combatants” at the Guantánamo detention facility were “shooting at my son”, and so he'll be damned if he's going to give them the right to a fair trial that US citizens are entitled to. The statement came up in a discussion of whether Justice Scalia should have then recused himself from any decision about trials for the political prisoners at Guantánamo, which led to a more general discussion of when the justices should recuse themselves.
But I want to look at the statement itself, what it says on the surface — and this is something I've thought about often during this extended public debate. Comments similar to Justice Scalia's have come up from many quarters. I recall hearing a “woman on the street” say, on the radio one time, “I don't think the freedoms that I enjoy should be applied to a terrorist.”
The general question is whether non-citizens, and particularly those who've been picked up as “enemy combatants”, particularly those accused of terrorism, should be given the rights that our constitution provides for citizens. Do accused terrorists get protection from unreasonable searches and seizures? Do they get the right to hear the charges against them? Do they get a speedy and public trial, by an impartial jury”? Do they have the right to be confronted with the witnesses against them; can they subpoena witnesses in their favour and have the assistance of counsel for their defense? Are they protected from cruel and unusual punishments?
Well, we might say, the woman on the radio is right, Justice Scalia is right: we have no business giving these nasty people the same rights we give to good folk. No, indeed, the freedoms we enjoy should not be applied to a terrorist.
The question, though, is whether they should be applied to a suspected terrorist. Because, you see, the people we're accusing of things are, quite so, merely accused of them for now. And we know how often people are wrongly accused of things. That's why we have the concept of presumption of innocence — that one is, as we often say, innocent until proven guilty. And the presumption of innocence must apply to everyone, or it's meaningless. Whatever our answer is to the list of other questions above, if suspected terrorists are not presumed innocent, then someone can point at you and shout, “Terrorist!”... and you're lost.
If we accuse them of being our enemies, and then refuse to give them due process because they're our enemies, we're using circular reasoning. Presumption of innocence isn't just a right for US citizens; it is, according to our values, a basic human right. There are some crimes for which we find it too easy to assume guilt, crimes that we find especially awful. Terrorism. Child molestation. Particularly brutal murders. It's important to remember that it's exactly those cases where we have to be the most careful. The greater the consequences of convicting the wrong person, the more careful we have to be to get it right.
Once we see that we must prove the terrorist's guilt, rather than presume it, it's clear that we have to give them fair trials. If, after bringing out the evidence and allowing them to defend themselves in the light of day, we decide that they're guilty, then by all means, we should throw the book at them.
But if we don't give them fair, open trials, according to the laws that this country is rooted in, we're no better than the despot we declared independence from more than 230 years ago.
Update, 13:30: Here's an item from today's NY Times about the hearings for the Guantánamo prisoners.
 As an exercise for the reader, which Bill of Rights amendment applies to each of those questions? No need to answer here, but... do you know?