Senior Associate, Law and Security
Cross posted at The Huffington Post
And you thought we could finally put the Casey Anthony case behind us. We should be so lucky. The recent acquittal in a Florida state court of the young mother charged with suffocating her 2-year-old daughter is now the latest political tool in the right wing arsenal against the 222-year-old United States federal court system – and the latest weapon in some GOP lawmakers’ fight to expand the “war on terror.”
According to Senator Mitch McConnell (R-KY), the Anthony verdict, although handed down in state, not federal court, is precisely why the United States should no longer be allowed to bring suspected terrorists to trial in its civilian federal courts: because juries cannot be trusted to convict in all cases.
Never mind the old American principle about convicting and sentencing only those who have actually been proven guilty. According to McConnell on Fox News this past Sunday, and then former U.S. Senator Fred Thompson in the National Review, we need a court where we can guarantee in advance that any suspected terrorists, arrested anywhere in the world and regardless of whether they pose a threat to the United States, will be convicted and sent away for life (or perhaps executed). Even the Washington Post seems to be suggesting the need for a new court in response to the newly-perceived “problem” – which was interestingly never considered a problem under the Bush administration — that the outcome of a U.S. federal court trial is not pre-ordained.
In this brave new world being laid out, we wouldn’t subject our own citizens to a separate court system that guaranteed convictions; that would be only for foreigners. Indeed, McConnell, in what’s become a common refrain among right-wing critics of the Obama Administration, last week railed against the Justice Department for charging a Somali man in a U.S. federal court for supporting international terrorism, and “providing him all the rights of U.S. citizens in court.”
Led by Senator McConnell and Representative Buck McKeon, some in Congress now want to mandate that all suspected terrorists, regardless of where they’re captured and what threat they may or may not pose to the United States, be charged and tried in an offshore military commission, far from public view and outside the normal purview of U.S. law.
Too bad it’s unconstitutional. The U.S. Constitution guarantees a fair trial to all accused individuals in U.S. courts – not just to U.S. citizens. So far McConnell and his colleagues have not proposed an amendment to change that. Before doing so, they might wish to consider that the military commission system hasn’t been nearly as tough on terrorists as have regular federal courts.
Take the case of Salim Hamdan, Osama bin Laden’s driver, who was sentenced during the Bush Administration to only five months in prison after his military commission trial. Or David Hicks, the Australian captured in Afghanistan and convicted of supporting terrorism there, who was sentenced to only nine months – most of which he served back in Australia. In fact, there hasn’t been a single life sentence issued by a military commission in any case where the suspect actually put on a defense.
Compare that to the recent civilian federal court convictions of Ahmed Ghailani, sentenced to life in prison after convicted of participating in the 1998 bombings of the U.S. embassies in East Africa; Faisal Shahzad, the Pakistani sentenced to life in prison last year for his failed attempt to set off a bomb in Times Square; and Richard Reid, the attempted “shoe bomber” sentenced to life after the Bush administration won his conviction in a civilian federal court in Boston.
In fact, more than 400 individuals have been convicted on terrorism-related charges in civilian federal courts since the terrorist attacks of September 11, 2001 – as compared to just six convictions in the Guantanamo military commissions. Given the track record, it’s hard to understand why senators like Mitch McConnell who say they don’t want to risk any terror suspects going free would be so eager to push all terrorism trials south to Guantanamo Bay.
Besides, the notion that a military commission will always convict regardless of the facts is an insult to the men and women in uniform who serve on them and try to judge the facts fairly. Having observed military commission hearings and trials first-hand, I believe the U.S. officers serving on them take their roles as jurors seriously.
As a human rights advocate, my problem with the military commissions isn’t that U.S. soldiers are any more likely to convict a suspect than is a U.S. civilian jury. It’s that the military commission proceedings are hidden from the public; and the entire military commission system is constitutionally questionable, lacking credibility and suggesting we’re willing to discard our most basic Constitutional principles out of fear of a bunch of misguided criminals half way around the world. Elevating ideological zealots and their supporters to the status of warriors by trying them in special military courts only inflates their egos and attracts more men to their deranged cause. (Judge William Young put it well when he sentenced Richard Reid: “You’re no warrior…. You are a terrorist. A species of criminal guilty of multiple attempted murders.”)
Federal investigators, prosecutors, judges and correctional officers are probably the best-equipped people in the world to handle investigating, prosecuting and imprisoning terrorists. And they have far more experience doing so than does the U.S. military. As I explained in a previous post, their work would only be disrupted by the proposal in the latest version of the National Defense Authorization Act now pending in Congress, which would require moving all terror cases to military courts. And that, in turn, would ultimately harm U.S. national security much more than it could ever help it.
Given the facts favoring federal courts over military commissions, it’s hard to see this latest effort by lawmakers as anything but another cynical attempt to hamstring the Obama administration at the expense of national security. Citing the failed state prosecution of a disturbed mother in Florida as evidence for their cause only reinforces the impression that these lawmakers would rather grandstand than stand for the law.