The Federal Justice System Can Do The Job

The job? Providing a fair, transparent, and secure trial for those accused of terrorism related offenses and taken into custody overseas. Any remaining rational doubts are squelched completely by a new study done under the aegis of Human Rights First. The study, In Pursuit of Justice should be read attentively by anyone concerned by the ongoing Bush/Cheney approach to the task of bringing alleged terrorists to justice in the US.

The Geek has been mystified and baffled by the continuing resistance to closing Gitmo, ending the Military Commissions, and getting on with the work of providing criminal trials to those accused of committing terrorism related offenses. The record of the US Department of Justice in achieving convictions, as detailed in the study, exceeds ninety percent. That is a good track record.

Further the authors of the study, who are former US prosecutors, show that the Federal system has the inherent flexibility to deal properly with the use of classified materials in a trial context and to deal with novel trial strategies on the part of both prosecution and defense. While not considered in this study or its 2008 predecessor, it might be mentioned that the Federal courts have come a long way from the tawdry days of the Rosenberg case where prosecutorial misconduct was matched by defense incompetence and bias on the bench which was palpable.

If that evolution were not so self-evident, the Geek would protest any transfer from Military Commission to Federal Court as a shift without any meaning beyond the cosmetic. Since the evolution is real and can be extrapolated by comparing the ill-behavior of Federal prosecutors and judges alike during the hysteria of the Red Decade with the case oriented study done by the Human Rights First authors, there is little if any risk that miscarriages of justice will be more rather than less likely by trying accused terrorists in the Federal criminal system.

There are overly zealous prosecutors willing to cut corners in search of a high profile conviction as the recent experience of former Senator Stevens shows. Importantly, this case was reviewed by the incoming Attorney General and found wanting for good reason, with the result the conviction was overturned at government motion.

Hopefully, the inherent transparency of a Federal trial would prevent a similar excess of zeal from polluting the trial of purported terrorists. Since no human system operated by humans with egos and fears can be foolproof, this must remain a hope to be guaranteed by the combination of judicial review and media afflicted with sufficient cynicism to be more than a mere government flack.

The concept of the "illegal enemy combatant" remains troublesome and is not addressed in either of the two cited studies. By any rational standard and the logical application of the relevant international conventions, a person in arms and wearing some sort of identifiable sign of badge of combatant standing is a prisoner of war regardless whether or not he is a member of a national force under the command and control of a state. He is an enemy combatant to be sure but there is nothing inherently "illegal" about opposing US forces in the field.

If, in addition to being under arms in opposition to US troops engaged in an interventionary operation, the captured combatant has violated one or another of the sundry laws governing the conduct of war or has engaged in an act of "terrorism" as defined by the US Criminal Code outside the immediate zone of combat operations, then his act may be "illegal" and is certainly a fit subject for judicial determination.

Parsing between the "enemy combatant" who should be held for the duration of hostilities as provided in the Geneva Convention and the "illegal" terrorist who is liable for criminal trial and conviction may be difficult, but it is not impossible. Failure to properly separate the chaff of the run-of-the-mill combatant and the criminal as has been the case at Gitmo and Bagram is a serious deficiency which will not be remedied quickly absent an invocation of the Federal criminal system.

For those who shake in fear at the idea that some hostile personnel taken prisoner will be read their rights as criminal suspects and thus denied to intelligence operatives as potential sources of critical, time sensitive information, the authors of the referenced study (and the Geek) say, "Pshaw!" Apparently Federal judges and others charged with operating the criminal justice system have been able to separate effectively the statements which can be used in court and those which are the sole province of the intelligence weenie.

In a similar fashion the authors say, "Phooey!" to those who worry and fret over the prospect of terrorists being confined before or after trial at institutions in the US. The Federal Bureau of Prisons has an excellent record of keeping hardcase terrorist heavies in the slam for twenty years now. All the way from arrest to execution (in the case of Tim McVeigh) terrorists consigned to the Bureau of Prisons have been kept without the slightest risk to surrounding communities let alone the entire US.

There is absolutely no reason to keep Gitmo open. No reason to continue the experiment of the revived Military Commissions. No novel system is needed. The Federal courts can and should do the job fairly and safely.

The Obama administration would be best advised to reverse their reversal on the closure of Gitmo and use of Military Commissions. There is no need to reinvent the wheel. We already have a perfectly good one. Use it.