New York Trials: Par for the Terrorist Course

 Those New York Trials: Par for the Terrorist Course

           It is astonishing how, since the last election, the party out of power has claimed with utter assurance and zero accuracy that various Administration actions or policies are radical departures from the way things always were.  For example, we often heard from the right during the Sotomayor confirmation process that the view that judges are supposed to make law was some dangerous liberal innovation, though every first-year law student knows judge-made law is a legitimate and critical aspect of jurisprudence.  The most recent eruption of such nonsense: After Attorney General Holder announced plans to try five 9/11 plotters in U.S. District Court in New York City, we heard repeatedly that it was odd, if not downright perverse, to apply ordinary American criminal justice in such a case.

           The stance of Sen. Judd Gregg of New Hampshire was typical: “These people are evil people.  They represent a cause which wants to destroy this nation. If they have the opportunity and were to get free, they would try to destroy this country.  There’s no reason we should have them in the criminal justice system.”  Military commissions are held up as some kind of norm from which the choice of criminal courts is some strange deviation.  “We’re reaching out to give terrorists a benefit that is unnecessary,” said Rudy Giuliani.

           Uh, not really, notwithstanding that Holder himself claimed he had a choice.  We have practically no history of using military commissions against civilians.  The Supreme Court in Ex Parte Milligan (1866) held that under the U.S. constitutional order civilians cannot be tried in the United States by military commissions while Article III courts are open and available.  And the technicality that these defendants were in Guantanamo, not in the United States, would not disturb the applicability of the U.S. constitutional order, not since Boumediene v. Bush (2008).  So it’s not clear at all that civilians can even be constitutionally tried by commission.

           Yes, uniformed combatants against us can be tried by military commission – for war crimes.  But these particular defendants are specifically 9/11 conspirators.  They are not uniformed military, and what they are being called to account for is not a war crime. 

           It is all very well for us to speak of a war on terror, but there has been no state of war, constitutionally speaking, with al Quaeda.  Call the armed conflicts following our invasions of Iraq and Afghanistan wars if you like, though technically I would disagree.  But the struggle with this stateless organization does not rise to that level.  As explained in earlier columns, even if we set aside the Constitution’s view of war as something only Congress can initiate, and then only by a formal declaration, war has still traditionally meant the clash of sovereign nations through duly constituted armed forces.  The label of war is momentous, and has momentous consequences, which is why the Framers tried to keep that label reserved for very particular circumstances.  There was no war waged on 9/11.  It was momentous; it was terrible.  But it was terrorism, not war.  There is no al Quaeda nation or army.

           And, even if the name of war had fit, it would ill become the nation which obliterated Hiroshima to speak of attacks on this nation’s cities or transportation, carried out in the course of such a war, as war crimes.  We have no moral standing to make that charge.  And it might not fit if we tried.  It arguably accords with the laws of war to ditch airliners in the sides of enemy buildings, because killing enemy personnel (even in many cases civilian personnel) and destroying their economic infrastructure is permitted to combatants.  So it is far from clear that, even if the 9/11 attacks had been carried out by uniformed military, these would have been war crimes.  It is, however, beyond doubt a violation of U.S. and New York State criminal law for civilians to attack skyscrapers with airplanes.  Good old-fashioned civilian criminal charges like conspiracy and murder fit beautifully, especially when the perpetrators are civilians.

           And we have a long history of trying civilian terrorists, including Islamic fundamentalists, as civilian defendants.  That includes terrorists who engage in paramilitary training, like Randy Weaver and his Aryan Nation separatists, al-Quaeda terrorists like Omar Abdel Rahman, Islamic lone wolf terrorists like Richard Reid, and mass murderer terrorists like Timothy McVeigh.

           In other words, we do not ordinarily regard facing Article III justice as some privilege too precious and dignified to be accorded to civilian defendants charged with terrorism.  And we almost never resort to military commissions for that purpose.

           Yes, we do expose ourselves to certain things with civilian trials.  Listening to the criticisms, one hears recurring themes:

 •        “This will give them a forum to attack the U.S., attack the West, attack torture, make the government a defendant.”  It is entirely to be expected that the defendants will try these things.  Most judges give such efforts very little scope.  Frankly, however, if some of that talk is permitted, I would expect most of it to ring quite hollow (the torture part excepted).  Somehow, our system has survived over two centuries of defendants being free to try to make the government a defendant.  I don’t notice too many people thinking the worse of the government because of such attempts.

 •        “It will make martyrs of them.”  No more so than military commissions; arguably less.

 •        “They’ll find out our intelligence secrets as part of discovery and make them part of the public record.”  As I’ve pointed out before, we have laws and procedures in place that should restrict access to and use of intelligence secrets – and we have, in the courts, the expertise with applying these laws and procedures.

 •        “They could get the cases dismissed on a technicality.”  The only technicality that comes readily to mind is the contamination of evidence by torture.  And all public indications are that the cases assembled against these defendants have been carefully purged of evidence obtained directly or indirectly from torture.  In the view of alarmists, “technicalities” are arbitrary and unpredictable visitations of the fates, uncontrollable and unpreventable.  In reality, conscientious prosecutors can foresee and avoid or prevent the irruption of “technicalities.” If there really were any rule of law that ended up requiring dismissal, then it would have to be so weighty that dismissal would be the correct response.  I frankly would not bet so much as a dime that these cases will ever be dismissed even if by rights they should be.  But if they were, I’d look for a rearrest by another sovereign, the military or New York State.  The chance of these defendants ever walking free is nil.

 •        “Rules of evidence will apply.”  Why, yes, and as these men will be on trial for their lives, it would seem appropriate to allow them the same protections given others charged with the most serious crimes.  We do not ordinarily lower the standard of proof for graver charges.  There would be no evident reason to start now.

           This is not some bizarre innovation, then.  It’s the way we always try civilians accused of terrorism.  It might be expensive, dangerous, even unwise.  But it is not unconventional.  And those calling it that should know better.

Copyright (c) Jack L. B. Gohn

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