Wednesday, November 18, 2009



Robert Harkins J.D.

The great Winston Churchill, in his book Their Finest Hour, describes with pithy British understatement The Blitz, Hitler’s carpet-bombing of the London population during World War II.

For fifty-seven nights the bombing of London was unceasing. This constituted an ordeal for the world’s largest city, the results of which no one could measure beforehand. Never before was so wide an expanse of houses subjected to such bombardment or so many families required to face its problems and its terrors.

When very young it was my privilege to share with an English lady, survivor of the Blitz, her personal experience of the horrors of human carnage as Hitler’s war machine sought to grind England into the dust. This English lady told of the bombs that fell from the night sky to incinerate men, women and children. The English, she explained, were as much shocked at the bestiality of Hitler’s mass murder of Londoners as they were by the sudden and stunning obliteration of family and friends. While Londoners were witness to death, prolonged, terrible and too awful to describe, they showed the world, as if it were a virtue quite ordinary, and “ nothing much really to speak of” their heroism, nobility, courage and strength. “THESE WERE THE TIMES, wrote Winston Churchill, in capital letters,

When the English, and particularly the Londoners, who had the place of honor, were seen at their best, Grim and gay, dogged and serviceable, with the confidence of an unconquered people into their bones, they adapted themselves to this strange new life, with all its terrors, with all its jolts and jars. [1]

Winston Churchill, when inspecting London, after a night of merciless bombing, saw the shattered remains of English homes, and yet, already waving over the rubble here and there were little Union Jacks. As his car moved in funeral silence through the street, English men, women and children rose from their cellars, or appeared out of clouds of dusty mortar, and in one bold voice cheered their old English bulldog. For a while, perhaps, it was all that Winston could do just to bow his head and keep his silence.

One would have thought I had brought them some fine substantial benefit, which would improve their lot in life. I was completely undermined and wept. Ismay, who was with me, records that he hears an old woman say, “you see, he really cares. He’s crying.’ They were tears not of sorrow but admiration.

It is impossible to gage the weight and measure of the debt the world owes to the English people who, alone— pathetically out numbered by crack German legions, and desperately unprepared for war as a consequence of a nearly fatal liberal policy of appeasement— nevertheless, as one people, stepped into the breach. The English people manned that breach as they bled out and died, as the Germans mercilessly destroyed their army at Dunkirk; and yet they fought on, until at last America, victim of a sneak attack at Pearl Harbor, entered the war.

I cannot now think of the English people without also thinking of American New Yorkers who experienced the crash of jetliners into the twin towers, the spectacle of fiery death and falling bodies, the heart break of loss, and the anger at being the victim of a poisonous ignorance, hatred and cowardice, this from predators who prayed on the innocent and killed in the name of their God, Allah.

I asked the English lady something like, “Well, how do you stop feeling sad?” And she explained after a long moment: “Well, Robert, we who were still whole and able, well, we took onto ourselves a bit of our neighbors’ grief, and we manage its weight in our heart, so that those who suffered so badly will feel a bit more lighthearted you see.”

In a spectacle of blunt vainglory, and in utter disregard of the sensibilities of already traumatized New Yorkers, the President and his Attorney General, Eric Holder, have decided to try in New York City five terrorists all with ties to the 9/11 massacre of New Yorkers. They are Khalid Sheikh Mohammed, Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi.

Now, an enormous financial investment will be necessary to protect New Yorkers against a distinctly new, gratuitous and potentially lethal risk of terrorist murder, a risk created out of thin air, not by predatory terrorists whose malice toward New Yorkers is more than clear, but by our own American president. New Yorkers will also experience over the years of trial and appeal a profound intensification of the anxiety they have experienced since 911. There will be no catharsis. New Yorkers will experience a chronic misery not because terrorism exists but because the President by fiat will import the risk of a terrorist attack to the New Yorkers’ front door.

The five terrorists who were ready to enter pleas of guilty to a military commission will now be tried, as an American would be tried, in a criminal court. Terrorists who, wearing civilian clothes killed and maimed from the cover of civilian crowds, and who carefully planned the murder of New Yorkers on 9/11 will be accorded by Presidential grace the protections of our American Constitution. The President’s gift of the American Constitution to terrorist killers of Americans is itself as great an infamy as is his decision to impose on New Yorkers a new and potentially devastating terrorist risk.

The President’s theory is that the trial of terrorists will show the world that we are a nation of laws not men, that we are a nation that cleaves to the principles of the Geneva Convention and to the principles of an American Constitution. In fact the President’s theory is as frivolous and unprecedented as it is unnecessary and dangerous. The articles of the Geneva Convention apply to soldiers who don their nation’s uniform thereby making themselves recognizable targets to the enemy. Terrorists, unassociated with any country, who disguise themselves and hide among women and children, who store munitions in mosques, who murder or annihilate themselves with explosives in the presence of children or American soldiers are not covered by the protections accorded to soldiers who wear their uniform in battle. Terrorists, therefore, may be, and must be killed wherever they are unearthed. Where there is a question as to their identity as terrorists, trial by military commission is the just forum and is, in any event, far better than they deserve.

The discovery rules applicable to criminal trials, since Miranda v. Arizona have become complex. A criminal defense attorney discovers quickly that many of his clients are in fact guilty of the crime charged against them. Even so the State is required to prove defendant’s guilt beyond a reasonable doubt. It is the defense attorneys’ ethical obligation to hold the prosecution of its case to the letter of the law. Accordingly, the defendant’s escape from a jury verdict of guilty, may result not from a trial on the merits, but from by an appellate reversal of a verdict of guilty for the prosecutor’s failure to comply perfectly with the rules of evidence, discovery or both. Where an appellate court finds that evidence seized or confessions taken violate Constitutional safeguards, a guilty verdict will be reversed.

Furthermore, the U.S. Supreme Court in Brady v. Maryland, and in a number of cases since Brady, has ruled that the prosecution must voluntarily provide defense with any and all evidence that might be “exculpatory” that is, that might incline a jury to conclude that the defendant is innocent of the charge against him. The doctrine of exculpatory evidence, however, is potentially treacherous to the prosecutor; for where he fails to produce to the defendant evidence that an appellate court later determines to be exculpatory, a verdict of guilty will be reversed.

Finally, were the water boarding of an American citizen to produce evidence of guilt there is no doubt whatever that a verdict reached on the admission of such evidence would result in reversal. As a practical matter the trial judge would not permit the jury’s consideration of the evidence on Constitutional grounds. For example, the terrorist confession that he joyfully beheaded an American citizen, Daniel Pearl, if acquired as a result of water boarding, would not be allowed into evidence to prove a conviction for murder. As all five terrorists have been granted precisely the same Constitutional rights as those enjoyed by Americans, the trial court may not, as a matter of law, admit such evidence, however otherwise clear, convincing and undisputed it might be.

We can well understand the anguish of New Yorkers as they learned of the President’s decision. They are after all Americans who like the English were among the very first to step into the breach there to bleed, and die and to show the world again, the courage and dignity that has raised an ocean of tears— not tears alone of our common American grief, but tears of admiration.

Churchill himself wrote in plain, purple ink the words that best fit New Yorkers who when put to the test, had the place of honor and were seen at their best, grim and gay, dogged and serviceable, with the confidence of an unconquered people into their bones.

What then can we as Americans do? First, on behalf of New Yorkers, we can shout our outrage to the Congress, Senate, to the President and Eric Holder. And perhaps then we may say to New Yorkers that we have always sought to take up something of the weight of your grief, and hold it as our own, in the hope that your heart may be a bit lighter.

What do you think?

I would most appreciate your comments: Robert Harkins

[1] Winston Churchill, Their Finest Hour, THE FRANKLIN LIBRARY, 1978), The Blitz, p.303.

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