Early on May 1, 2012: Before the attacks of September 11, 2001, many Americans may have been willing to agree that one person’s terrorist was another person’s freedom fighter. Certainly, I remember being moved by the politics and the philosophy of the Irish Republican Army members accused of gun running during one of the first cases I worked on as a trial strategy consultant in the early 1980’s. They spoke of similarities between the restrictive ways in which the British treated the Irish and the ways they had treated the Jews of post-World War II Palestine. I am Jewish and I saw my IRA clients differently after that.
Since 9/11, the word “terrorist” has evoked a more singular meaning in the United States and has arguably spawned a new sort of socially acceptable anti-Muslim prejudice. Americans were made afraid in ways that are unique in our history. An attack on our soil by a foreign entity (not even a nation) was unprecedented.
As I write, a jury in the EDNY is deliberating the case of US v. Adis Medunjanin, a Muslim man who immigrated from Bosnia to Queens following the “ethnic cleansing” perpetrated by the Serbs against the Bosnians. Many members of his family were murdered. Now, in New York City, he is accused of participating in the subway bombing plot which was described to the jury as one of the most serious threats to American safety since the attacks against the World Trade Center towers. Mr. Medunjanin, 28 years old, is an accused terrorist.
I spoke with one of his defense attorneys, Mitchell Dinnerstein (who also happens to be my husband). I asked him what the hardest thing was for a defense attorney representing someone at a terrorism trial. Mitch said, “The hardest thing is to figure out how, after people hear the word terrorism they can look at the defendant and treat him as any other defendant should be treated – so that the presumption of innocence means something, so that the government still has to prove its case beyond a reasonable doubt – irrespective of people’s strong feelings after hearing the word terrorism.” He continued, “If they think of him only as a terrorist, they’re going to have a hard time accepting the legal principles of our society.”
Defendants deserve the right to be seen as more than the accusations against them. Whether they are accused of terrorism or other criminal conduct, they are entitled to be seen in contexts not wholly defined by the government’s accusations against them. Too often, people charged with crimes become reduced to the accusations. Terrorists, more than most defendants – even those charged with violent crimes – may be too easily de-humanized, as if they could be defined by no more than their desire to destroy America. But, of course, they are human beings and at trial it is essential for jurors to see this. An attorney’s hand rested on the defendant’s shoulder sends the jurors a message of humanity. Testimony elicited at trial, in the case of Mr. Medunjanin from convicted terrorists/cooperating witnesses, showed jurors the uncertainty, the confusion, and the sense of loyalty to others that underlie the choice to engage in violence as social protest.
Mitch said that the most compelling moment of the trial came when one of the cooperating witnesses cried on the witness stand and said that he loved Adis Medunjanin. And while the defense did not see this as positive testimony since this witness was an admitted terrorist, this testimony did reveal how complicated things are, that people who are willing to do terrible things also have a certain sense of humanity.
Because there is no easy divide between those who do only good and those who do evil sometimes, the legal principles that properly glorify courtrooms must be the true touchstones of justice: the presumption of innocence and the government’s burden of proof beyond a reasonable doubt. Even more than in most cases, it is important for jurors in terrorism cases to be reminded of these touchstones and to cling to them.
Recently, the Freedom Tower, rising beside the footprints of the World Trade Center towers, overlooking the 9/11 Memorial, reached 89 floors and bested the height of the Empire State Building. Many of the iron workers who are erecting this remarkable steel frame worked in the pit for more than a year after September 11th to dissemble the wreckage of the towers. The construction site leader was interviewed for NBC news, and he spoke about how emotional the men feel about this construction. The building is set to soar 1,776 feet in the air in symbolic acknowledgement of the birth year of the United States.
Only the principles can rise above the tenor of the times: even terrorists deserve to be accorded the presumption of innocence and the government’s burden of proof beyond a reasonable doubt. As a society, we need and deserve this no less than they do.
Later on May 1, 2012: Adis Medunjanin was convicted on all counts. Some of the counts carry a mandatory life sentence.