President Obama, his administration, and Attorney General Eric Holder, have come under heavy attack from critics who say that trying Guantanamo terrorists in federal court opens the door to all sorts of mischief — in particular, allowing terrorists the right to demand access to classified information and to seek the shelter of rights that are available to criminal defendants, including Miranda warnings and constitutional rules about the admissability of evidence. Conservative blogs like powerlineblog.com have been particularly outspoken in their opposition to Holder’s decision. Like many Americans, I felt that the Bush administration did great harm to America’s reputation by stretching, if not exceeding, the legal limits of presidential authority in using waterboarding, domestic surveillance of American citizens, and unlimited detentions in secret foreign prisons. But, as a lawyer, I was concerned that dealing with the nation’s enemies in the federal judicial system risked not only turning trials into circuses but also could compromise national security through forced disclosure of sensitive information. It was with particular interest, then, that I read an op-ed piece in today’s Washington Post co-authored by two former officials in the Bush Justice department, Jim Comey and Jack Goldsmith. Comey was Deputy Attorney General under AG John Ashcroft, and Goldsmith was director of the Office of Legal Counsel and worked to overturn overly broad legal opinions (some of which may have been written by John Yoo, an unapologetic advocate of expansive executive authority in wartime). Goldsmith was a key player in a famous incident during the Bush years, when he raced to Ashcroft’s hospital room upon hearing that Alberto Gonzales and Andy Card were trying to get the ailing Ashcroft to reauthorize a warrantless wiretap program before it expired. They were successful, and I remember seeing Goldsmith on a Bill Moyers’ PBS broadcast after he left the Justice Department. Goldsmith has written a book called The Terrorist Presidency, which I own and have read, but it was something of a disappointment, as he really didn’t have his heart in outing the excesses of his former colleagues. The op-ed piece, from which I will quote, enters the debate over whether the Khalid Shiek Mohammed and his fellow defendants should be prosecuted in civilian or military courts. Goldsmith and Comer argue that the hullabaloo over which system is better exaggerates the differences between the two systems, and that there are advantages and disadvantages to each. I might also add that Secretary of Defense Robert Gates’ silence on the subject is an indication that the issue is not as critical as Obama’s critics would like to make it. * [Khalid Sheik] Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs. * A trial in Manhattan will bring enormous media attention and require unprecedented security. But it is unlikely to make New York a bigger target than it has been since February 1993, when Mohammed’s nephew Ramzi Yousef attacked the World Trade Center. If al-Qaeda could carry out another attack in New York, it would — a fact true a week ago and for a long time. Its inability to do so is a testament to our military, intelligence and law enforcement responses since the Sept. 11, 2001, attacks. * In deciding to use federal court, the attorney general probably considered the record of the military commission system that was established in November 2001. This system secured three convictions in eight years. The only person who had a full commission trial, Osama bin Laden’s driver, received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge. * One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions’ validity. This uncertainty has led to many legal challenges that will continue indefinitely — hardly an ideal situation for the trial of the century. * By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again. * In either trial forum, defendants will make an issue of how they were treated and attempt to undermine the trial politically. These efforts are likely to have more traction in a military than a civilian court. No matter how scrupulously fair the commissions are, defendants will criticize their relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them. Some say it is wrong to give Mohammed trial rights ordinarily conferred on Americans, but a benefit of civilian trials over commissions is that they make it harder for defendants to complain about kangaroo courts or victor’s justice. * These decisions have already invited charges of opportunistic forum shopping. The Bush administration, criticized on similar grounds, properly explained that it would use whatever lawful tool worked best, all things considered, to incapacitate a particular terrorist. Holder’s decisions appear to reflect a similarly pragmatic approach. * Of course, the attorney general made a different call on Mohammed than did the Bush administration. The wisdom of that difficult judgment will be determined by future events. But Holder’s critics do not help their case by understating the criminal justice system’s capacities, overstating the military system’s virtues and bumper-stickering a reasonable decision. * * * * I think that this is an important and timely piece, because the opinion of two uncontaminated Bush Justice Department officials ought to be given considerable weight by conservatives who are eager to label Obama and Holder as soft on terrorists. I hope that it has a moderating effect on those who think that Obama and Holder had some sinister liberal purpose in moving the trial into the federal courts.
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