Tuesday, August 21, 2007
Can we really take al Qaeda to court?
Kelly Anne Moore, a former federal prosecutor, proposes criminal prosecution for the remaining detainees at Guantanamo Bay. She argues, as have many lawyers before her, that this is not only a solution for shuttering Gitmo (an objective she deems "urgent" to achieve, without explaining why), but more generally the right way to deal with terrorists. Moore argues that we can prosecute terrorists in our criminal courts because we have done so (citing her own experiences in the '90s and Jose Padilla more recently), and that we ought to do so because it will transform martyrs into losers:
Those who commit terrorist acts should be tried as the criminals they are, instead of the “warriors” they claim to be. If the Guantánamo detainees were prosecuted in federal courts instead of being designated as “combatants,” most by now would be serving prison time as convicted terrorists, instead of being celebrated as victims or freedom fighters.
I respectfully suggest that Moore is profoundly wrong, both specifically with regard to the Gitmo detainees and in general. Or, more precisely, she may be occasionally correct but is not generally correct.
Procedurally, "terrorists" come in different varieties. There are terrorism suspects arrested by police after they commit an act of terrorism, or plan a terrorist operation with such granularity that they commit numerous indisputable crimes in the process. In such cases, I am sure that the criminal justice system is often (although not always) a functioning means for preventing the suspect from attacking again. The criminal justice system does not always work even these cases, because if the arrest was based on evidence derived from infiltration or some other means that we want to keep secret from terrorists we have not yet arrested, disclosing the development and custody of that evidence in court would damage our ability to interdict future attacks.
Apart from suspected terrorists arrested by actual police, schooled as they are in the development and control of evidence, we also have terrorists taken prisoner on "the battlefield," meaning under suspicious or uncertain circumstances in foreign jurisdictions where al Qaeda is known to operate. As I understand it, most of the Gitmo detainees fall into this category. Soldiers are not trained to develop evidence, have no CSI unit available to them, and the military is not staffed or otherwise tasked with managing evidence and witnesses if either happen to fall into its possession. I suspect that most of the detainees at Gitmo could not be prosecuted even if we wanted to, because the people who "arrested" them have no training or mission in law enforcement. Moore's idea that we should empty Gitmo by prosecuting the detainees would probably result in the acquittal of a lot of very dangerous men, not to mention the extended distraction of law enforcement and prosecutorial assets that we might otherwise devote to interdiction.
This, of course, gets to the heart of the disagreement between those who would prosecute terrorists, and those who would sequester them until the jihad is as defeated and discredited as the Huks, the White Russians, and the Confederate States of America. The criminal justice system is not designed to interdict crime. It is designed to punish criminals after the fact of their crimes in order to deter others from becoming criminals. Jihadis, who blow themselves up in order to kill other people, are not deterrable. They are only interdictable. Which means that we need a means for putting them away that does not necessarily require the commission of a crime, particularly when we capture them under circumstances that do not allow for the organized development of evidence.
Now, you might argue, as most civil rights advocates do, that anything less than the complete protections of our system of criminal procedure risks the imprisonment of innocent people. Indeed it does, to which I have two answers.
First, if the alternative is the deaths of innocent people, it may be a price worth paying.
Second, we know that our criminal justice system is itself far from perfect. The analysis of the DNA in old evidence has resulted in the reversal of 200 convictions within the criminal justice system, and those cases represent the mere tip of the iceberg. Even if all the detainees at Gitmo are entirely innocent -- an absurd assumption -- they would represent only a fraction of the wrongfully-convicted people in American prisons. We accept that even our criminal justice system imprisons innocent people because the alternative -- tightening further the procedural defenses for criminal suspects -- is judged to put other innocent people at risk. Why should we think of counterterrorism differently?
Finally, Moore's idea that conviction of the Gitmo detainees will somehow diminish their status in the eyes of our enemies, or even the Muslim masses, is, well, hilarious. Does she really believe that the Arab street has such a refined regard for the American criminal justice system that it will revise its view of the Gitmo detainees if evidence -- which Moore admits may have to be kept secret -- is brought against them in a United States Federal courthouse? Or is Moore really only concerned about the reaction on the Manhattan cocktail party circuit?
15 Comments:
By 
Georg Felis, at
Tue Aug 21, 10:35:00 AM:
Another question that Ms. Moore does not answer is what crime do you charge these terrorists with? This is even more high-stakes than trying to prosecute the Mob. Think about it for a bit, you have a military operation in Afghanistan that raids a Taliban safe house and captures an individual that an informant had told you is a high muckety-muck in the organization. Presently this gentleman can be removed from the house, placed in solitary confinement and questioned at great length as to his location, playmates and hobbies. If you are going to treat him as a criminal, do you turn him over to the local police? What crime under Afghanistan law do you charge him with? Can you charge him with violation of a US law when out of our jurisdiction? Question to ponder: If the Mexican police came across the border and arrested a Texas farmer on violating Mexican law, what would be your reaction? If the Iranians sent soldiers to raid Iraq to capture US soldiers and drag them back to face “Charges”, would that be legitimate? (Ok, they tried that once already and got shot to heck, but its still a fair question)
I’m not saying I have the answers. I’m just saying for 90 some percent of these goons, the existing system is working just fine without the introduction of Lawyers. But some of them will be a danger as long as they are producing CO2 (the terrorists, not the Lawyers).
By 
, at
Tue Aug 21, 10:37:00 AM:
It may indeed be true that the incidental imprisonment of 'innocent' men is a tolerable social cost in the effort to prevent the destruction of equally innocent American lives. However, if and when it should be determined down the road that one or more of these prisoners is in fact innocent, what would we owe him?
We permit the state to condemn property for the general good, but we require that the owner be fairly compensated for the property taken. When is the value of years of isolated accidental imprisonment?
Neal Johnton
By , at
Tue Aug 21, 11:22:00 AM:
"Which means that we need a means for putting them away that does not necessarily require the commission of a crime"
Wow. So you'd throw away 200 years of social progress in order to go back to the days of "I think she's a witch, burn her".
What you're describing is the kind of thing that used to happen in the U.S. and currently happens in countries the U.S. doesn't want to be like and publicly denounces on a regular basis.
"Even if all the detainees at Gitmo are entirely innocent -- an absurd assumption -- they would represent only a fraction of the wrongfully-convicted people in American prisons."
You make a false equivalence by pretending that the people jailed in Gitmo have gone through an equivalent judicial process as those jailed in the normal American prison system.
Hint: They haven't.
I really can't believe that you're arguing the flaws in the current American Justice system somehow justify a less rigorous system which would be applied only to terrorism suspects.
You seem to completely ignore the fact that prosecutors constantly dismiss cases based on a lack of evidence and our society has not crumbled to the ground or killed itself in an orgy of violence.
Replace "terrorism" with "drunk driving" and it's intensely obvious how flawed your argument is.
By tm, at
Tue Aug 21, 11:24:00 AM:
First, if the alternative is the deaths of innocent people, it may be a price worth paying.
Or: 'Sorry, Afghani goatherder, but Americans are worth more than you, so you'll just have to be locked up for life.'
I understand the reasoning, although I'm not entirely comfortable with it.
I do think we can minimize the innocent people kept locked up; for example, we could stop paying warlords to kidnap people. That's a conflict of interest a mile wide.
By TigerHawk, at
Tue Aug 21, 12:18:00 PM:
Lord F. - Replace "terrorism" with "drunk driving" and it's intensely obvious how flawed your argument is.
Really? I think your thought experiment supports my point rather than undermines it. Potential drunk drivers are manifestly deterrable. They alter their behavior in the face of more aggressive enforcement and more severe penalties. More to the point, we have decided, as a society, that we will not demand that the system interdict drunk drivers before they drink and drive. We arrest them after they have done so. The only interdiction comes from private action -- "friends who do not let friends drink and drive." We have decided that post hoc enforcement is just fine for drunk driving, just as it is fine for rape, littering, or bank robbery.
On the other hand, terrorists -- at least suicidal ones -- are not deterrable. They will kill regardless of their chance of apprehension and punishment, which in any case they keep low by blowing themselves up. Post hoc arrest and prosecution does nothing to reduce the risk. We therefore need to interdict them before the attack. The debate is whether the criminal justice system is up to that. I submit that it is not.
By , at
Tue Aug 21, 01:29:00 PM:
I'm with Lord Farkington. There are arguments to be made for not trying suspected terrorists in normal courts alongside regular criminals; I think the most convincing of these is that the proceedings can't be as public as normal trials usually are in order to protect sensitive intelligence sources. But the current lack of due process available to terrorism suspects detained by the executive is really, really bad. It's not acceptable or desirable to keep anyone, let alone an American citizen, detained for years just because the pres says it's the right thing to do, without any review or proceedings available to challenge their status.
I also really hope that you don't think that the extralegal prison in Gitmo should be a long-term fixture of our country. The very continued existence of the place does damage to our liberties by making us complacent about extraordinary governmental powers to deprive us of our freedom. If you want to point to a victory against our way of life that terrorists have achieved in the US, Gitmo would be one.
And finally, I doubt Patrick Henry would be much in agreement with your sentiment that it's OK if innocent people are imprisoned without legal process as long as it might (potentially) save lives. Isn't that fundamentally anathema to the values of this country?
By , at
Tue Aug 21, 01:39:00 PM:
You are hilarious. And a nutjob. My milk came out my nose on "sequester".
To argue that because we wrongly convict some people while attempting to ensure their fair trial, we need not worry about actually giving people fair trials... wow.
You also seem to believe it's better to deny any due process at all instead of reconsider our notions of admissible evidence (which are amendable by act of Congress). Or are you suggesting the soldiers you imagine can't come up with anything remotely credible to show their captive's dangerousness or criminality? If they can't, maybe they shouldn't send the guy they have to the gulag.
By , at
Tue Aug 21, 04:11:00 PM:
How much due process did Axis POWs get? How insane would FDR have been to allow Luftwaffe pilots access to our court system?
By Unknown, at
Tue Aug 21, 04:18:00 PM:
"an objective she deems "urgent" to achieve, without explaining why"
Maybe she doesn't explain it because it is self-evident to most sane people that the idea of confining people in perpetuity without due process is antithetical to American values.
By , at
Tue Aug 21, 05:18:00 PM:
Sigh, people are so gullible.
This article's an obvious satire, in the style of Johnathan Swift's "A Modest Proposal". There's no point in arguing with the author; he's just pulling your leg to get a reaction.
If you think he's serious, look at some of the older articles, especially the howlers about the Iraq War. (The bit from 8/20 about Scott Beauchamp being a "self-loathing American" pretty much gives the game away.)
By , at
Tue Aug 21, 05:25:00 PM:
Iowa John: If the detainees were POWs, which status they are not entitled to, they'd have more legal protections than they do now. For one thing, we couldn't torture them.
From the wikipedia entry on WWII POWs:
"By contrast, allied nations such as the U.S., UK, Australia and Canada, tried to treat Axis prisoners strictly in accordance with the Geneva Conventions. This sometimes created conditions for POWs better than those their fellow soldiers enjoyed at home. The lower rank prisoners were used for work on farms and road maintenance and were compensated for their work as required by the Geneva Convention. In addition, as word spread among the enemy about the attractive conditions of Allied POW camps, it encouraged surrenders, which helped further Allied military goals. It may have raised morale among the Allied personnel when the usefulness of this approach was accepted by reinforcing the idea that this humane treatment of prisoners showed that their side was morally superior to the enemy."
That "moral superiority" bit is another thing advocates of places like Gitmo seem to have lost sight of. We're morally superior to the terrorists even if we do operate Gitmo, but like it or not we definitely sacrifice legitimacy and some measure of moral superiority by operating extralegal and/or secret prisons.
By , at
Tue Aug 21, 05:47:00 PM:
Phrizz,
You're absolutely right about the various prisoners having more rights if they were POWs. However, they chose to wage war in an illegal fashion in direct contravention of all Geneva statutes. Rewarding terrorists with access to criminal courts and due process only creates another battlespace for them.
As for the cushy confines of a federal prison maybe encouraging Islamist fanatics to surrender, well, let's just say that I don't think the comparison to German draftees holds up.
By , at
Tue Aug 21, 06:52:00 PM:
Some commenters here seem to forget one important thing about the detainees at Gitmo. Very few, if any, are American citizens therefore we are under no obligation to give them the same rights as American citizens. How can it be that by holding non-Americans, who were captured on a battlefield, hurt or threaten our rights as American citizens? Are some people worried that on their next vacation to the Afghan/Pakistan border they might be picked up and flown to Club Gitmo? Unfortunately innocent people probably have been detained, but I imagine that the circumstances around their detainment/capture were investigated by the proper authorities to the best of their ability, and due to time, mission, or other reasons a complete and exhaustive background check and investigation was not possible. I would also imagine that investigations into these people's backgrounds continues while they are detained, this is why some detainees have been released. More than a few of these people found innocent and released have been later recaptured or killed on the battlefield. True, a few might have been driven to join the fight because of their wrongful imprisonment, but I would bet you dollars to doughnuts that this is a tiny fraction of those released.
By , at
Thu Aug 23, 11:15:00 AM:
I would point everyone to this very fine article from yesterdays opinion page at the WSJ, if you haven't already seen it. One issue for which the Supreme Court has established precedent, the article points out, is that being an American citizen matters not in the discussion.
Andrew
By Dawnfire82, at
Fri Aug 24, 07:06:00 PM:
Small potatoes don't go to Guantanamo anymore. 'But what if they're innocent' isn't even a factor.
