Trials That the People Want

Almost two-thirds of Americans disagree with the decision by President Barack Obama's administration to try the suspected 9/11 mastermind in a civilian court, a poll showed Monday.

Sixty-four percent of those surveyed said Khalid Sheikh Mohammed should be tried in a military court, while only 34 percent agreed with Obama that the civilian judicial system was the best way forward, the CNN poll said.

Attorney General Eric Holder announced on Friday that Sheikh Mohammed and four suspected co-plotters of the September 11, 2001 attacks that killed nearly 3,000 people would be tried in New York in a civilian court.

Sixty percent of those questioned in the CNN poll agreed that Sheikh Mohammed should be brought to the United States to stand trial, while 37 percent opposed the move.

Polling on all sorts of things, from political candidates to various issues of the day, can obviously be useful for gauging public opinion, which may qualify a proposed policy or proposals by a candidate. That's why polls exist. They're problematic, of course, because they don't necessarily represent the most reasonable views. They often represent the populism-of-the-day. Governing according to polls is a capricious and dangerous affair.

But my question here is: why should what the CNN poll above indicates matter? One of the cornerstones of our society is due process. For due process to be meaningful at all, it has to be consistent. We can't start picking to whom it applies and to whom it doesn't based on whatever a random sampling of the public thinks on any given day, which often reflects what ignorant media and political demagogues are saying on any given day.

In a liberal democracy, it is not the case that anything goes. The will of a democratic majority itself has limits, and these limits are captured in the idea of rights, particularly minority rights. Rights, of course, come with responsibilities to the society that upholds them. When a person commits a criminal act some of his rights are abrogated by society in the name of protecting society from that person. But in our system it is not the case that all rights are abrogated, even when the crime is heinous. In the American constitutional system, legal rights apply most immediately to citizens. The philosophical conception of rights behind the statements of the Constitution, however, is that they apply to all human beings. They are essentially human rights. Part of the greatness of the US Constitution is precisely that it is one of the very first and founding constitutional expressions of what we would later call "human rights."

One might say that the difference between military tribunals and civil courts is negligible in this context. But it's not. Military tribunals are an important part of the US legal system. Closed military tribunals teeter at the edge of a different sort of political-judicial system. The very legitimacy of the US judicial system is grounded in its transparency. Due process through civil courts for foreign citizens who have committed a crime on US territory is a reasonable legal route. It also ensures the legitimacy of the process. Any problems with legitimacy in these cases are not due to the simple act of trying terrorists in civilian courts, but are rather in previous policies that circumvented and subverted the letter and the spirit of US law.

Regardless of the arguments here and elsewhere, however, it simply does not matter whether a sample of the US population favors military courts or civilian courts. It would be exceedingly dangerous to make policy influenced by such a poll.