Stalinism vs. the rule of law

When the prosecutor gets to threaten criminal charges against the defense lawyer for “using contemptuous language” toward the high officials who ordered the maltreatment of his client in captivity, and the crime being charged didn’t exist when the defendant was apprehended, it’s hard to call what’s happening a “fair trial,” isn’t it?

Back in the Stalinist days of the Soviet Union, someone could be held in prison without charges for five years, tortured, and then charged under a law that hadn’t even been passed when he was picked up. If he ever got a trial at all and his defense attorney, in the course of defending him, dared to criticize the Party Secretary or the Defense Minister, the prosecutor could charge the defense attorney with “using contemptuous language toward high officials,” a charge for which the defense attorney could be sent to prison.

Aren’t you glad we don’t live in such a country?

Oh, wait …

But of course our government would only do that sort of thing to “the worst of the worst,” people who are such dangerous terrorists it would be madness to release them until the end of the War on Terror. Never, for example, people we’d be happy to let run free if they only admit their guilt and agree not to make a big fuss in court about their treatment while in captivity.

I’m with David Kurtz: I have absolutely no idea why anyone would doubt the fundamental fairness of the military commission system.

Update Volokh Conspirator Jonathan Adler doesn’t see anything wrong with a prosecutor threatening a defense lawyer with criminal prosecution for complaining in public about injustice done to his client. Since when does “zealous advocacy” end at the courthouse door? Mori seems to have found a strategy that will actually get his client off; I thought that’s what lawyers were paid to do. Did I miss the memo?

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: