Re: TownHall.com – 5/2/2008 – “Willful Blindness to the Jihad” – David Limbaugh

I’m afraid Limbaugh has missed the point of American justice. He states correctly that the “entire orientation of the criminal justice system is to protect the rights of innocents, affording the accused due process and a litany of other constitutional protections”. He correctly continues that “we are at war with an enemy who doesn't fight wars according to conventional rules”. But he begins to loose his way with “If we continue to treat them as criminal suspects rather than enemy combatants, they'll always be many steps ahead of us in a war that only they are fighting” when he seems to refer to both those accused of and those guilty of being the enemy as equivalent entities. And with “While our government frets over their constitutional rights -- rights to which enemy combatants have never been historically entitled -- it abdicates its duty to protect American lives” Limbaugh clearly reveals his utter confusion between being accused of a crime and actually being guilty of a crime.

In making any determination about the guilt or innocence of the accused, the legal system is always faced with two distinct but related kinds of errors. On one hand, an innocent may be wrongly convicted and punished; on the other hand, the guilty can be erroneously absolved of guilt and thus escape their just punishment. Assuming the null hypothesis in our legal system is always that the accused is presumed innocent until proven guilty, the first kind of error is called a “type I error” (an invalid rejection of a correct null hypothesis) and the second type of error is called a “type II error” (an invalid acceptance of an erroneous null hypothesis). In general the probabilities of making type I and type II errors are related, and by decreasing one, the other tends to increase.

For those of who believe that our judicial system must maintain the same type I / type II threshold no matter how serious the danger of a type II error is, the danger of terrorism is of no significance in establishing the guilt of a suspected terrorist, and everyone (accused terrorists included) is equally innocent until proven guilty. It is not that we don’t understand the danger of terrorism; it’s just that we do recognize the danger of deserting our democratic traditions and institutions in the name of defending them and declaring the accused guilty based on the accusations against them instead of the evidence in support of the accusation. 

For those Americans who cannot believe that our democracy is a strong enough form of government to stand up to terrorism, I challenge them to produce a better form of government. But until then, the accused (regardless of what they are accused of) must be offered the same protection against being falsely accused that the innocent deserve.