Innocent until executed?

Howard Dean said something eminently responsible and correct, though it was insane for a Presidential candidate to say it: A President, and therefore a Presidential candidate, shouldn’t prejudge the guilt of someone who may well be tried in an American court.

“Innocent until proven guilty” isn’t just a good idea, it’s the law, even when the person in question is Osama bin Laden. But then, noticing that he had shot himself in the foot again, Dean backed off, and announced that “as a citizen” he wanted to see bin Laden executed.

The whole thing is too bad. It’s easy after the fact to figure out what Dean should have said:

“If I’m elected President, which I expect to be, I may be in the position of having to sign a death warrant for Osama bin Laden. That’s an awesome responsibility, though under the circumstances it’s one I look forward to discharging.

But no one who might have that responsibility ought to publicly prejudge the guilt of a potential defendant. I’d love to see Osama bin Laden on trial, and I hope it will be under circumstances where death is a possible penalty after the relevant facts have been demonstrated beyond reasonable doubt. But guilt is always a matter for a jury to decide, and no politician ought to interfere with that process.”

Well, he didn’t say it, and instead said something that made him seem to harbor actual, rather than merely procedural, doubt. He then tried to fix the resulting political problem by calling (“as an American,” whatever that means) for the execution of someone he regards as (in procedural terms) still innocent.

I hope his Democratic rivals lay off this one; if Dean is the nominee, the Republicans can have enough fun with it without any help. As seems to be usual with Dean, the reporters are trying to give him a break. (Note how gently CBS plays it, with no recitation of previous Dean gaffes and flip-flops.) But it wasn’t Dean’s best performance.

Nor was his (accurately) describing national security as a “hole in my resume” needing to be plugged. (Note: I doubt any Vice-Presidential candidate can do that.) It’s true about Dean, just as it was true about Bush in 2000. But this year it matters, and Dean would have been better advised to leave his frankness at home that morning.


A reader wants to know why, if bin Laden is presumed innocent, it’s all right to send attack helicopters to try to kill him. Answer: Because he’s an enemy — that is, someone who has made and is making war on the United States — and warfare doesn’t proceed according to the rules of criminal procedure. In war, guilt is not a precondition for being killed, and the judgment about who is and who is not an enemy gets made politically and not judicially.

Because of the kind of war he has waged against us, bin Laden is also a potential defendant in a criminal trial, just as Saddam Hussein is a potential defendant both for the way he ruled Iraq and the way he made war on Iran and Kuwait. Someone in that position is, as a procedural matter, presumed innocent unless and until proven guilty. That doesn’t mean that everyone else has to suspend judgment, but it does mean that potential participants in the trial process, up to and including the chief executive who is responsible for the prosecution and may have to sign the death warrant, ought to avoid publicly prejudging the case. That is the correct point that Gov. Dean rather imprudently made, and then rather timorously backed off from.

My hope that the other Democrats would lay off has, unsurprisingly, not been fulfilled. Kerry practically squeals with glee as he skewers Dean. (And I have to admit, “foreign policy by clarifying press release” is a pretty good line.) Of course, this is just payback for the kind of campaign Dean has been running, but it’s still bad practice, and I’m glad to see that Clark has kept his peace so far.

It’s also notable that Dean refused to take questions from national reporters on the issue. I wonder if the honeymoon may be about over?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: