Courting Disaster

by Eric Martin

Listening to critics of Obama's decision to try certain terrorist suspects in civilian courts, one gets the impression that Obama is taking a big risk, and that civilian courts are either ill-equipped to handle such cases, or the rules governing the proceedings in those venues create too big an advantage for defendants.  Obama's critics argue that military commissions should be used instead - presumably because they are better suited for adjudicating such matters.

Here's the problem, though: civilian courts have a much better track record of convicting terrorists than military commissions - and the sentences tend to be longer when a conviction is handed down.  Patrick Barry explains by way of Ken Gude:

Ken Gude, of the Center for American Progress, writes, “The facts are clear: Criminal courts are a far tougher and more reliable forum for prosecuting terrorists than military commissions.”

The record of federal courts for trying terrorists, particularly since 9/11 is formidable.  Former Republican Congressman from Oklahoma Mickey Edwards writes: “[Critics] scowl and declare that our American courts will not, or can not, convict terrorists.  They seem pretty damned certain of that.  Which is weird since nearly 200 terrorists have been convicted in our federal courts in the last nine years (that's 65 times as many as have been convicted by military commissions).” A 2009 report by Human Rights First written by a team of former federal prosecutors found that terror trials in civilian courts had “a conviction rate of 91.121%.” And for those still think the NYC issue somehow stems from the courts effectiveness at prosecuting extremists, a study by NYU’s center on Law and Security, found that NYC courts have a zero acquittal rate for terrorism cases. [...]

Support for military commissions might make sense, if the commissions themselves weren't so ineffective and soft. Gude explains, “military commissions have never handled a single case of murder or attempted murder and have doled out shockingly short sentences to terrorists—even to a close associate of Osama bin Laden.”  Moreover, “since their formation in November 2001, military commissions have only had one trial, negotiated one plea bargain, and convicted one defendant after he boycotted the proceedings,” while sustaining multiple supreme court challenges.  Of the three individuals convicted in military commissions, two received sentences less than a year long. 

Meanwhile, Adam Blickstein attempts to shoot down some of the miranda warning/right to counsel/interrogation nonsense flowing from the Obama administration's handling of the underwear bomber's arrest and interrogation.  First, quoting Spencer Ackerman:

Collins said in a statement that the fact that the FBI read Abdulmutallab his Miranda rights “likely foreclosed the collection of additional intelligence information.” But over the weekend, The Associated Press published the most comprehensive account to date of Abdulmutallab’s interrogation and found no evidence that Mirandization inhibited interrogators’ access to valuable information. FBI interrogators, to the contrary, read him his Miranda rights after they were satisfied that he had no further information about any further attacks.

And, again, quoting Ken Gude:

These conservatives clearly believe that the criminal system impedes intelligence collection because defendants get lawyers in the criminal system who always tell their clients to stop talking to the government. The only problem with this argument is that their recommended solution to this apparent problem—charging detainees in military commissions or holding them without charge in military detention—doesn’t change a defendant’s access to an attorney...Military commissions also have procedures prohibiting self-incrimination and ensuring that statements from the defendant are made voluntarily. There is virtually no difference between military commissions and criminal courts in the provision and availability of defense counsel.

Gude also undercuts Jindal's argument by describing the litany of valuable and actionable intelligence America has obtained from terrorists with lawyers present. This intelligence gathered in the presence of legal counsel has, in fact, kept America safe...And, my god, all that information without torture!

Right, don't let the facts get in the way of a good talking point.  It would be nice if the Republican Party decided to take a principled stand, embrace the facts and stop demagoguing these issues, which political opportunism serves to erode this nation's commitment to the rule of law and basic human rights - whether it be increased affinity for torture amongst the population, or willingness to detain suspects indefinitely without recourse.  These cheap shots can be quite expensive in the long run.

Comments

[Randinho]

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.

[Slartibartfast]

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.

[Eric Martin]

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.

[Fred]

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.

[Eric Martin]

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.

[Eric Martin]

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.

[Randy Paul]

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.

[efgoldman]

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.

[Anne]

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.