Yesterday, Dianne Feinstein and Patrick Leahy bravely bucked the scaremongering by Republicans and too many of their own Dems to strongly back the use of civilian trials for 9/11 suspects. The Intelligence and Judiciary chairs wrote to the president to "express full support for civilian trials for terrorists."
And they’re also trying to forestall any effort by congressional Republicans to compel trials in military commissions. "Congress should not tie the hands of our national security and law enforcement agencies, but should instead ensure they have the flexibility to use every means available," Feinstein and Leahy wrote. "Congress should be working with you in a shared mission to most effectively protect our national security and to ensure that just convictions, once obtained, will be sustained and upheld."
The president and his Attorney General, Eric Holder, need to heed the advice of these Senators. In an interview with WaPo today, Holder indicated he might be leaning toward giving up on civilian trials.
"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules," Holder said. "If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding."
What the world should see is the vaunted system of American justice at work--that system that has already secured the convictions of hundreds of terrorists and the few convictions through military commissions have been relative failures, as Daphne Eviatar argued in a diary here yesterday.
[T]he federal courts are no bed of roses for terrorists. They have convicted many more terrorists than military commissions have. And following the only contested military commission trial since the start of the "war on terror," Osama bin Laden's driver, who the government claimed was a key player in the global jihadist's murderous efforts, was sentenced to only five and a half years in prison - just six months more than the time he'd already served....
Back then, the National Review's Andy McCarthy, the former prosecutor who now argues for military interrogation, trial and detention for all terrorism suspects, wrote a piece titled: "Disgraceful Hamdan Sentence Calls Military Commissions Into Question."
That was 2008.
Just last week, McCarthy wrote that "Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials." Our usual procedures for handling criminal terrorism cases no longer need to be followed, because now we are at war, he says, so anything goes. Although the same critics making this argument today never pressed that position during the Bush administration, it's now become accepted wisdom among those eager both to discredit the Obama administration and to appear tough on terror that terrorism suspects belong nowhere near the civilian justice system.
It's an odd position for these critics to take, given the track record of the military commissions. Military commissions have convicted only three terrorists since they were created. Two of them have already been released from prison. The other didn't even present a defense at his trial.
What's more, in a military commission, conviction on charges like "conspiracy" and "material support for terrorism," the most common charges against suspects who haven't personally launched an attack, could be reversed on appeal, since those haven't traditionally been considered war crimes. Or, as in the Hamdan case, they might just draw a far lighter sentence. Even the administration's own lawyers have expressed doubts about the validity of such charges in military commissions. In federal court, such charges are routine - and frequently the way prosecutors win convictions.
Tom Malinowski, Washington director of Human Rights Watch, has more at Foreign Policy
As the U.S. Congress threatens to block funds for Khalid Sheikh Mohammed's (KSM's) civilian trial, critics of President Barack Obama's approach to prosecuting terrorism have a common refrain: KSM is a combatant, not a criminal. As Sen. John Barrasso recently put it, "These people are at war against the United States and our values. They deserve a military judge and jury."
But does KSM really "deserve" the honor of a military trial? That is a privilege normally reserved for defendants entitled to call themselves warriors....
It makes sense that a man who plotted the murder of innocent people from a refuge thousands of miles away would want to be seen as a soldier in a war. But why would politicians who claim to be tough on terrorism want to give him that status, as many Republicans do today? Why on earth do they think that facing justice in a civilian court, where the United States prosecutes murderers, rapists, drug dealers, pimps, and yes, terrorists (over 300 during George W. Bush's presidency), would be some sort of privilege?
This is the most destructive of political games--the deliberate undermining of the American system of justice to score political points over the administration in the effort to keep the "weak on terror" meme going. Civilian courts are more than capable of trying these cases. What's more, putting and keeping these cases in the civilian court system forces our intelligence and defense services to follow the rule of law--building a case that will hold up in the courts means no torture, no coercion, no forced confessions. No wonder the civilian courts are Cheney's biggest nightmare.