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January 29, 2010


September of 2008 I went to a symposium sponsored by Human Rights First at the NYC Bar Association concerning prosecution of terrorism in civilian courts and blogged about it here.

Here's the takeaway from this: there is a 91% conviction rate in civilian courts in terrorism cases. The prior administration and its amen corner have never made a persuasive case that these cases could not be successfully prosecuted in civilian courts. Never.

At the time, by the way, I did not know that the Andrew McCarthy was the same Andrew McCarthy who makes serially tendentious arguments at The Corner. That explains everything in hindsight.

Good post, Eric, but it looks like there will be some unrelated difficulties to sort out:

Mayor Michael Bloomberg appeared at the event with Paterson but did not take questions. He originally supported plans to hold the trial in Manhattan but reversed his position this week, asking Holder to move the proceedings. The city claims it will cost hundreds of millions of dollars to provide security for a court case that is expected to last at least a year.

Not necessarily slarti. They're talking about moving the civilian trial to a different venue where they will conduct the civilian trial.

Still not a military commission, so fine in my book.

A primary objection to the civilian trials is that they force the gov't to reveal secret information to get a conviction. The legally process called Discovery requires these disclosures.

Another problem is that each trial creates a bully pulpit for terrorists who can be dramatically quoted in Arab media.

The data on conviction rates argues that good results can be obtained without compromising secrets or making propaganda for our enemies.

Note that Andy McCarthy, who prosecute the terrorists who attacked the World Trade Center in 1993, is now opposed to such prosecutions for the reasons given, and others.

Note that Andy McCarthy, who prosecute the terrorists who attacked the World Trade Center in 1993, is now opposed to such prosecutions for the reasons given, and others.

Yeah, but his credibility buried somewhere deep below the subbasement. He's a wild conspiracy theorist, and not known for coherent argumentation.

Another problem is that each trial creates a bully pulpit for terrorists who can be dramatically quoted in Arab media.

Except that's not true. Judges can and do cut off defendant's when they are doing anything other than directly answer questions in a succinct manner.

Further, showing trials of terrorists being treated as common criminals actually greatly injures the terrorist group's repuation and image. They are supposed to be warriors, knights, soldiers of god committed to martyrdom. Not common criminals.

Jihadi groups actually tend to disassociate with convicted jihadists, and certainly don't focus on the trials themselves. However, they do focus on US hypocrisy, like the use of torture and the abandonment of the principles of habeas corpus, and rule of law.

What Eric said. Fred, with respect, are you at all familiar with procedure in civil and criminal courts? The judge controls the entire process during the proceeding. I'm not an attorney, but I have testified several times in civil proceedings for a former employer and I can tell you that any judge worth his or her salt exerts this control. No one can speak without the judge's permission, no attorney can even approach the witness without the judge's permission.

Defendants have no inherent requirement to testify and if they do, as Eric noted, they can merely respond to the questions they are answered. I had testified at a trial once in which the defendant wanted to interject something and the judge told him "there is no question pending." When he attempted again, the judge sternly advised that there was no question pending.

Are you familiar with CIPA? If not, you should acquaint yourself with it. There are procedures in place to protect classified material in criminal trials.

As for Andrew McCarthy, actually his boss, Mary Jo White prosecuted the WTC terrorists. She now believes that the military commissions were a bad idea. Indeed, of all the people on the panel, McCarthy was the only one who opposed prosecutions in civilian courts, while not even making a credible argument as to why.

I think many people's ideas about criminal courts come from (1) TV shows and (2) the circus that was the OJ trial.
Federal criminal courts don't resemble either, except for the layout of the courtroom and the judge on the bench. Procedure is much more restricted. If OJ had faced federal charges, Cochran would not have been able to do half of what he did. And one hopes, then prosecutors would have at least been competent. The judge was so enamored with himself being on national TeeVee that he lost control of the trial very early on.

To see people like Susan Collins of Maine actually try to promote the argument that civilian trials are a mistake is beyond comprehension,unless one understands that the GOP is trying to politicize this issue.
She looked like a deer in the headlights, especially when Andrea Mitchell told her that Richard Reid, the shoe bomber, had been mirandized, tried and convicted under GW Bush. She went on to stick to her absurd argument by saying Bush also made a mistake. There are people who mistakenly think Richard Reid is an American, but he is a British citizen. I feel that if people like McConnell and Hoekstra play politics with national security issues, they will sooner or later overplay their hand. Some members of our intelligence apparatus are also Republicans and could very well pay these folks back for their disrespect and appeals to ignorance.

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