Hedging on civilian trials

During a week in which the aerial photos of the World Trade Center towers collapse were released as a fresh reminder of the hole punched into New York City, Eric Holder may be signaling he's thinking about a military tribunal for Khalid Shaikh Mohammed rather than a civilian trial. Adam Serwer is not happy.

The fight against al-Qaeda is different from other conflicts in that it takes place on at least two fronts, one physical, and one abstract. The U.S., its military, intelligence and law enforcement agencies are fighting the kinetic aspect of that conflict, but fundamentally the point of terrorism isn't to kill, it's to terrorize. It's to intimidate a society into betraying its own ideals, to force Americans to live their lives under the terrorists influence, and to bankrupt the U.S. through endless military conflicts abroad. Terrorists don't win by killing, they win by the subsequent reaction to the theatrical manner in which they choose to kill. By transitioning the KSM trial out of the civilian justice system the Obama administration will have handed al-Qaeda a significant victory.

The Post says that the president is going to "insert himself into the debate" here. I'm not sure if that means he intends to shore up Holder's original decision or provide political cover for a venue change. But it's clear the White House is calling the shots, and if they push to try the alleged 9/11 conspirators by military commission out of political expedience it will shatter any notion that Holder is an independent attorney general.

It shouldn't come as much of a surprise to the Democrats that they're losing this fight--the message is completely muddled. The administration can't argue that the military commissions are a perfectly good venue for trying terrorists and then say the civilian courts are better without acknowledging the reality that the commissions are shaky, stilted towards the prosecution, and perceived internationally as illegitimate. Had they simply not revived them in the first place, they'd have a much clearer argument. As it stands, they're in a similar position to where the Bush administration was on torture, rhetorically clinging to an ideal they have no intention of upholding.

And while back off on a civilian trial may seem to the Obama administration as the most politically expedient way forward, former FBI agent Ali H. Soufan writes in the Times today, it's not likely to be the most effective way to put KSM behind bars for a very long time.

Of the three terrorists tried under military commissions since 9/11, two are now free. David Hicks, an Australian who joined Al Qaeda, was sent back to his native country after a plea bargain. Salim Hamdan, Osama bin Laden’s former driver and confidante, is a free man in Yemen after all but a few months of his five-and-a-half-year sentence were wiped out by time spent in custody. (The third terrorist, Ali Hamza al-Bahlul, a former Qaeda propaganda chief, was sentenced to life in prison.)

In contrast, almost 200 terrorists have been convicted in federal courts since 9/11. These include not only high-profile terrorists like Zacharias Moussaoui, who was convicted of conspiracy to kill United States citizens as part of the 9/11 attacks, but also many people much lower on the Qaeda pecking order than Mr. Hamdan.

The federal court system has proved well equipped to handle these trials. It has been the venue for international terrorism cases since President Ronald Reagan authorized them in the 1980s, and for other terrorist cases long before that. Prosecutors have at their disposal numerous statutes with clear sentencing guidelines. Providing material support, for example, can result in a 15-year sentence or even the death penalty if Americans are killed.

Military commissions, however, are new to lawyers. Military prosecutors are among the most intelligent and committed professionals I have ever known, but they faced great difficulties as they operated within an uncharted system, the legality of which has been challenged all the way to the Supreme Court three times.

It’s also worth noting that, since 9/11, there have been only two terrorists apprehended under military law on United States soil: Jose Padilla, the American accused of plotting to set off a “dirty bomb,” and Ali Saleh al-Marri, a Qaeda operative accused of being a sleeper agent. After several years, both were transferred to the federal system and are now serving time. If anything, holding them in military detention might have hindered our ability to gain their cooperation, as they gave no new significant information during that period.

Nonetheless, attacks on the abilities of the federal justice system have intensified ever since Mr. Abdulmutallab was arrested in Detroit on Dec. 25 and charged with federal crimes. Critics claim that he should have been held under the laws of war and not read his Miranda rights.

Whether suspects cooperate depends on the skill of the interrogator and the mindset of the suspects — not whether they’ve been told they can remain silent. When legally required, I’ve read some top Qaeda terrorists their rights and they’ve still provided valuable intelligence. Now we’ve learned that “despite” being read his Miranda rights, Mr. Abdulmutallab is cooperating with his F.B.I. interrogators. This should have been no surprise.

Leaving aside the self-evident hypocrisy and anti-constitutional ranting of Congressional Republicans (why do they hate America?), the complaints from Bloomberg and others in New York -- that a trial would disrupt the city and the lives of those who live there -- just doesn't rest on any evidence. They've been holding high-profile terrorism cases there for years.

Nothing "common" about them

The New York Times gets it right.

Mr. Holder said those prisoners would be prosecuted in federal court in Manhattan. It was an enormous victory for the rule of law, a major milestone in Mr. Obama’s efforts to close the detention camp at Guantánamo Bay, Cuba, and an important departure from Mr. Bush’s disregard for American courts and their proven ability to competently handle high-profile terror cases. If he and Vice President Dick Cheney had shown more faith in the laws and the Constitution, the alleged mass murderers would have faced justice much earlier.

Republican lawmakers and the self-promoting independent senator from Connecticut, Joseph Lieberman, pounced on the chance to appear on television. Despite all evidence to the contrary, they said military tribunals are a more secure and appropriate venue for trying terrorism suspects. Senator John Cornyn of Texas, a former judge who should have more regard for the law, offered the absurd claim that Mr. Obama was treating the 9/11 conspirators as “common criminals.”

There is nothing common about them — or Mr. Holder’s decision. Putting the five defendants on public trial a few blocks from the site of the former World Trade Center is entirely fitting. Experience shows that federal courts are capable of handling high-profile terrorism trials without comprising legitimate secrets, national security or the rule of law. Mr. Bush’s tribunals failed to hold a single trial.

Left unmentioned is the absolutely predictable rise of the Giuli911 and the absolutely predictable failure of the media to call bullshit on him.

The government shouldn't get involved in these kinds of disputes

Like gang rape?

Geebus.



What, truly, is wrong with these people?

Deterrence

Matt Yglesias, as well as others, notes that CIA operatives should fear the consequences of breaking the law. That's why we have laws. But no Serious People in Washington seem to agree.

30 months for Libby

Time Magazine cries for Scooter.

When I. Lewis "Scooter" Libby was sentenced Tuesday to a surprisingly long term of 30 months in prison for perjury and obstruction of justice, he became a victim of one of the most troubling aspects of federal sentencing laws — allowing harsher sentences for a crime that was never actually proven.

Huh?

The leak was the key issue for most Americans, the crux of an apparent White House campaign to discredit Plame's husband, Joseph Wilson, who wrote a 2003 op-ed piece debunking WMD justifications for the Iraq war. But while outing a CIA agent can be illegal, neither Libby nor anyone else was actually charged with doing that to Plame. In fact, pre-trial maneuvering found the prosecutor, Patrick Fitzgerald, insisting that this was not a case about a leak and fighting defense requests for documents about whether Plame was ever a covert agent, a status that could have made intentionally leaking her identity a crime.

No, this was a case about lying to FBI agents and a Federal Grand Jury under oath and obstructing justice, Reynolds Holding admits, in an effort to discredit a critic. Please.

Also at Time, Ana Marie Cox also spills salty tears for this selfless civil servant.

Walton said that the severity of the sentence stemmed from his feeling that to not hold public officials *more* accountable would cause people to feel "government does not work for them" and "cause them to lose faith in the government."

As it stands, the one person today who knows the government does not work for him is Scooter Libby.

Again, let's remember what a jury of his peers decided.

The judge sentenced Libby three months after a federal jury found Cheney's one-time top aide guilty of four felonies for failing to tell the truth to a federal grand jury and the FBI about the disclosure of former CIA agent Valerie Plame's identity. Libby was convicted of two counts of perjury, one count of making false statements to FBI agents, and one count of obstructing justice. He was acquitted of a fifth count.

It also doesn't seem likely that Judge Walton is going to find much "appealable," which might incline him more to let Libby go free pending appeal.

Which would mean that this steaming plate of Republican Red Meat -- a "Scooter" pardon -- is going to end up on preznit's desk. All because Cheney took umbrage at being called "liar" by Joe Wilson.

Now that's justice.