A Pragmatic Take on Terrorist Trials
For a thoughtful discussion of why terrorists like Khalid Sheikh Mohammed should not be tried in civilian courts, I recommend ch. 7 of Judge Richard Posner’s Countering Terrorism. It contrasts starkly with Attorney General Eric Holder’s babbling incoherence on the subject, and Obama’s deafening silence. (Funny, he seems to have time to yak about pretty much every other subject, including, as in an ad I saw this evening, how it’s a really good idea for fathers to take interest in what their kids do. Who knew? Thanks for telling me! I had never figured that out before.)
Pages 174-176 are quite persuasive, as is this summary on p. 185:
Criminal law enforcement is no more likely to win the “war on terrorism” than it is to win “the war on drugs.” It is maladapted to both struggles. We should be deemphasizing the efforts to prevent terrorism by criminal prosecutions, especially but not only in the regular courts, which are not designed for the trial of people who pose a serious threat to national security. Our counterterrorism efforts would be more effective, and at the same time the dilemma of defeating terrorism while respecting civil liberties minimized, if we downplayed the judicial role in counterterrorism.
Although a jurist, Posner understands the strengths and weaknesses of his profession (the legal profession generally, and the judging sub-profession particularly). He persuasively counsels against the (Anglo-American) tendency to try to jam everything into conceptual boxes defined by historical precedent. Since terrorism is sui generis, he says, it is advisable to devise similarly specialized means to combat it rather than to rely upon existing institutions designed for completely different tasks.
He is, interestingly, not a fan of military commissions, viewing them as essentially legal and judicial tools almost as ill-adapted to combatting terrorism as civilian courts.
Posner’s book, I might add, was published in 2006. He also wrote another book that speaks to this subject, titled Not a Suicide Pact, also in 2006.
I wonder if Holder has read either.
Actually, I don’t.
So, what would be an institution that is adapted to counter terrorism efforts? There needs to be some legal process – especially if it relates to charging an American citizen or a legal resident. Anything supra legal has the potential to be politically misused. Does speaking / trashing a President or a Congressman or an American institution a potential terrorist threat? Is writing in favor of communism a potential terror threat? How about sporting a long luch beard and performing namaz 5 times a day in public view? I know some of these are boundary occurrences. Should we just say “too bad” to some innocents that get persecuted inadvertently? Even legal systems are never 100% perfect, even though we are forced at all times to claim so. In any case it comes back to who get to decide..and how can we be sure that they did a good job and not just making up stuff / honestly believing?! to justify their existence.
Comment by Surya — November 22, 2009 @ 10:21 pm
Silly me, I didn’t know these trials were at fore (or aft) of GWOT. Geez, I thought we invaded Afghanistan in that pursuit, tne lurched of to get rid of Sadham, and built missile shields, and build secret prisons to house the teraists, then
torturedhumanely interrogated ’em… etc. etc.And seems to me from what I’ve read that most of the folks we stuck in these prisons were not teraists at all… randomly picked up here and there base on all kinds of unconfirmed innuendo, …
From what I’ve seen, taking this long-after-the-fact decision and, by inference, suggesting any part of GWOT was intelligently or purposefully exectuted… I dun’o man, hard for me to agree w/your “thoughtful discussion”
charactarization of Posner’s ruminations.
Well, I can’t disagree w/your take on BO’s ineffectiveness (and I walked the streets to get this guy elected).
But… my disgust w/BO is his utter lack of anything worthwhile in solving/dealing with this (and financial/econ mess) is total.
However, the similarly inaccurate trend among so many to impute upon BO the messes that were made & caused by his predecessor only further guarantees the persistence of these “problems”. The means by which all these messes were created was completly, entirely different than BO’s utter lack of courage/insight/wisdom etc. etc.
Comment by jdmckay — November 23, 2009 @ 10:56 am
For a civilian court to function under our systesm of juris prudence, the first presumption is that the defendant is innocent and must be proven as guilty (motive, means, opportunity) by the State. If not, then they must be set free under the law, and are subject to new charges but cannot be tried for the same crime to which they have been acquitted. The presumption of a crime in large part goes to a motive which is recognized as a common reason understandable within a societies mores; i.e. greed, fear, depraved indeference, profit. Terrorists fit into none of these catagories in terms of motive. Likewise there is not a normal means by which evidence can be gathered and presented, particularly when the combatants are found on and taken into custody on foreign soil. Under Holder’s applied logic, the bombing of London neighborhoods was a criminal act (crime against civilians) but the bombing of a miltary base would be a matter for military courts. Holder’s whole premise is completely flawed, and we the Amercian people and the sanctity of our intelligence community and justice system at large are going to pay a heavy price. The whole idea is absurb.
Comment by SA — November 24, 2009 @ 1:30 am
News flash: defendant’s at the military commission are presumed innocent, must be proved guilty beyond a reasonable doubt, have a right to silence, etc. The difference is not process, it is jurisdiction. The question Posner does not adequately address is whether terrorist conduct qualifies as violations of the laws and customs of war. If not, what is the legitimate justification for trial by a military court (the historic trigger for military jurisdiction over “enemy” personnel)? Until this issue is definitively resolved by our courts (which has not yet occurred, and is an issue on appeal from the few cases already tried by military commission), conviction by military commission is far less “final” than conviction by federal court.
Comment by geoffrey corn — November 24, 2009 @ 7:58 am
SA:
We’ve already paid a “heavy price”. Based on all kinds of deceptions, lies, and false premises, most of the civilized world distrusts US motives based on Bush era execution of GWOT, especially detainee treatment at GITMO… and worse at Abu Gahraib, renditions, and attempts to fix outcomes of military tribunals w/out regard to any sense of justice.
The Arar Mahar saga alone is criminal AFAIC: a clear abridgemeny of law in his aprehension, lies from highest levels of Bush admin regarding how he was renditioned and who made decisions… utterly bizarre. The appearance of Bush decisions to protect those who executed this process, let alone stonewalling efforts to clean it up… indefensible and a statement to the world that covering their butts trumps any semblance of justice.
/a>McClatchy’s series on fixing GITMO tribunals backed up by massive factual timeline, further reinforced by anyone who paid attention throughout. Overwhelming majority of JAG’s backed up these assertions, many of them fired for not getting on board.
The midnight roundups of suspected Bathists in Baghadad… disappeared, no notification to families or relatives, no paper trail or register of detainees at Abu Gahraib (and several other secret prisons in north)… most of these folks, as later admitted by Bushco, were not terrorists. Last I looked, over 30,000 such people detained.
It goes on and on…
To assert Holder/BO’s attempts to clean up after-the-fact legal proceedings… after all this other shit, is somehow going to be a seminal event in exacting a “heavy price”, I dun’o… too much Faux news and WSJ OpEd(s) distorting your apprehension of reality.
Comment by jdmckay — November 24, 2009 @ 8:51 am
Oops… McClatchaty link is here
Comment by jdmckay — November 24, 2009 @ 8:54 am