August 24, 2007
WAR/LAW: It's A Crime
Former Judge Michael Mukasey has a great summary of why the Jose Padilla case, even after Padilla's conviction, still shows that processing terrorists and potential terrorists through the regular criminal justice system is such a bad idea. Key graf:
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.
Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.
And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.
On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.
Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.
The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.
At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.
As I have said repeatedly, it's a terrible mistake of the critics on the left to assume that everyone must either be treated as an ordinary criminal defendant or a lawful combatant. The system needs to formally recognize a third category and tailor the rules to the special needs of dealing with them.
I agree completely. But there has to be a better alternative than the current one. Secret trials are fine, as long as there is OVERSIGHT.
The Nazi U-Boat saboteur case in WWII is a good place to start a comparison of what we are doing to what we once did. Six men were executed and two were given prison sentences followed by deportation after the war.
One of the saboteurs, Herbert Hans Haupt, was an American citizen, while the others had spent portions of their lives in the US. All had been born in Germany. Their trial was a military tribunal and the justification was that they had not entered the United States in the German military uniform, and thus must be considered spies.
I think that this is the start and the end of all arguments of this nature. As Al Qaeda is not a recognized government and does not use a formal military as it is legally understood, all of their operations are spying and sabotage by default. There is nothing else that they can be.
Trials of captured saboteurs should be military tribunals. This does not mean that trials will be held in secret, but the niceties that our criminal justice system provides for your average serial killer should not be available to saboteurs.
It is also worthy to note that surveillance systems such as the one exposed by the NY Times would not be open to exposure within the military tribunal system. I believe that as a matter of common sense, this is a good thing. I am sick of anti-Bush lawyers perverting justice and our legitimate efforts against these murderers. Gee whiz, guys, put your politics aside for a moment and think of the safety of your fellow citizens.
NRA, we may be twin sons of different mothers.
Mad, I'll buy you a Guiness the next time you're in Sacramento. It'll be a distinct pleasure and privelege, sir.
Well, I don't get that far out very often, but you never know.