UPDATE: This post was voted First Place by the Watcher’s Council. Thank you!
A friend who voted for Obama last year (and regrets his decision BTW) asked me why I opposed the civil prosecution of terrorists and supported military tribunals. He thought that treating them as run-of-the-mill criminals was an insult, and that by convicting and sentencing them in a military tribunal elevated their status from terrorist to warrior. Here are the reasons I gave him for why I believe that Attorney General Eric Holder’s decision is the worst political decision made since President Ford pardoned Nixon in 1974.
1. Confusion on the battlefield. Imagine that a terrorist has been captured near the Afghan-Pakistan border. The commander in the field has to consider what the likely political decision will be: will he be tried in an American civilian court or in a military tribunal? At the point of time of capture – and for weeks later – he won’t know whether to mirandize the terrorist and give him an attorney or detain him for military tribunal. This reflects the role of the military in conflict: are they soldiers subject to the rules of war, or are they well-armed policemen?
It’s not clear whether this political decision to try one terrorist in a military tribunal and another in a civilian court is even legal. One terrorist who is tried in military court could demand to be tried in civilian – or vice versa. Sen. Lindsay Graham pointed out yesterday in the hearing with the Attorney General that this was one example how the decision clearly wasn’t well thought out by Holder and the administration.
2. Civilian courts and military tribunals follow vastly different procedures and requirements. The presumption of innocence for example. There isn’t any in a military tribunal. Consider the Nuremberg Trials. Goehring was guilty; the question was the extent of his guilt. In fact Khalid Sheik Mohammed (KSM) had already plead guilty and faced a death sentence by the military tribunal – until the Administration halted all military tribunals for review.
So KSM suddenly becomes innocent and it’s up to prosecutors to prove him guilty according to the rules of the venue selected by the Obama administration. But being mirandized is a prerequisite by civilian courts.
When captured KSM demanded an attorney. He didn’t get one. This fact alone could sink the prosecution, and was brought up by Graham in yesterday’s hearing. “We would never allow that to happen,” Holder replied. Graham pressed him on that answer, but Holder didn’t explain further (video here).
Setting the issue of acquittal aside for a moment, a civilian court relies on evidence. That evidence has to be collected methodically and in a transparent manner.
3. Secret evidence cannot be used in a civilian trial. Any evidence against KSM must be made public. How was he located? What methods were used? Were these methods themselves legal? Any illegally obtained evidence – from waterboarding or an illegal wiretap for example – could be the basis for an appeal or overturning of a sentence as laid out by the legal concept of the Exclusionary Rule.
4. The procedure of capturing and detaining KSM gets put on trial. Were his rights violated? Was his imprisonment lawful? In short the Bush Administration gets put on trial for its procedures rather than KSM’s murder of 3000 civilians.
5. Civilian courts are public; military courts private. Did you follow the trial of the 20th Hijacker? I did. It was a complete farce. In the end he was convicted but after providing him with a forum to preach.
6. KSM could walk. Military tribunals are not subject to appeals; civilian cases can be appealed all the way to the Supreme Court. Any technicality could be used to convince a judge to overturn or restrict his sentence. However Attorney General Holder stated there was no way KSM or any other terrorist would walk.
“if one of these terrorists” in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.
“I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability,” Holder said.
So we’re going to try KSM and associates, and if there is a problem with the trial, Holder is going to do a Plan B.
What happens if KSM (and his co-defendants) “do not get convicted,” asked Senate Judiciary Committee member Herb Kohl. “Failure is not an option,” replied Holder.
Not an option? Doesn’t the presumption of innocence, er, presume that prosecutorial failure—acquittal, hung jury—is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.
Attorney General Eric Holder is a smart man, as is his boss, so watching these two men say and do something so blatantly stupid is unnerving.
First, prosecutors said the same thing with OJ 14 years ago.
Last I checked he was on the golf course somewhere presumably with better fitting gloves. (CORRECTION: Simpson is currently serving time in prison for robbing a sports memorabilia dealer in Los Vegas-thanks to Jack S.) Secondly federal courts are not Kangaroo Courts. If the primary reason for Holder and Obama to try KSM is to tout the American Legal System, they would have to abide by its decision should a terrorist like KSM received a favorable ruling.
“It’s heads I win, tails you lose,” says Joshua Dratel, a top New York criminal-defense lawyer who has represented numerous defendants in terrorism cases. “It does unfortunately ruin the effect of the notion that we are bringing them to federal court to uphold the rule of law, if you say, ‘If the rule of law doesn’t work, we’ll try something else.’ ”
Ruin it? Yep, I’d have to agree. What’s the point of touting the virtues of American Justice if everyone knows the “fix is in” for a defendant? I don’t think it is. I have a hard time believing that the administration would have the spine to stand up to the courts to keep terrorists locked up. At the same time I don’t see them committing political suicide by letting them go free either. In short I don’t see any benefit at all to trying defendants in civilian courts.
Can you imagine KSM walking away – what it would do to our image abroad? Jihadists already think we are weak; such an outcome would be the biggest recruitment tool since Carter sat on his hands while Iranians tortured embassy personnel.
Bin Laden liked to call America the “weak horse” in his speeches. “...when people see a strong horse and a weak horse, by nature, they will like the strong horse.” He saw his vision of Islam as the strong horse and freedom as exemplified by America the weak horse. The decision to try terrorists in civilian courts is yet one more example supporting Bin Laden’s belief.
UPDATE: I spoke to my 88 year old mother over the weekend. She too regrets her vote. She lives with one of my sisters who is a devout believer in the One. She and her husband won’t let my mother watch Fox News – so she waits until they are asleep.
My mother is a life-long Democrat. The last Democratic president I heard her talk about this way was Jimmy Carter over 30 years ago.