What NYC Terror Trial Uproar Changes: Nothing Posted by Patrick Barry

Speculation that the White House is taking up Mayor Bloomberg's request to re-locate the trial of the 9/11 conspirators somewhere outside NYC will probably find supporters of military commissions sharpening their knives.  But why should that be? Leaving aside that the request for a relocation is largely a controversy of inconvenience (H\T Adam Serwer), civilian courts are still the most effective tool for bringing terrorists to justice. Ken Gude, of the Center for American Progress, writes, “The facts are clear: Criminal courts are a far tougher and more reliable forum for prosecuting terrorists than military commissions.”

The record of federal courts for trying terrorists, particularly since 9/11 is formidable.  Former Republican Congressman from Oklahoma Mickey Edwards writes: “[Critics] scowl and declare that our American courts will not, or can not, convict terrorists.  They seem pretty damned certain of that.  Which is weird since nearly 200 terrorists have been convicted in our federal courts in the last nine years (that's 65 times as many as have been convicted by military commissions).” A 2009 report by Human Rights First written by a team of former federal prosecutors found that terror trials in civilian courts had “a conviction rate of 91.121%.” And for those still think the NYC issue somehow stems from the courts effectiveness at prosecuting extremists, a study by NYU’s center on Law and Security, found that NYC courts have a zero acquittal rate for terrorism cases.

Another refrain from opponents of civilian trials is that they will somehow act as a soapbox for Al Qaeda to spread its virulent ideology.  Writing in the New York Times last November, Council on Foreign Relations counterterrorism expert Steven Simon pushed back on this idea: “Historically, the public exposure of state-sponsored mass murder or terrorism through a transparent judicial process has strengthened the forces of good and undercut the extremists. The Nuremberg trials were a classic case. And nothing more effectively alerted the world to the danger of genocide than Israel’s prosecution in 1961 of Adolf Eichmann, the bureaucrat who engineered the Holocaust.”

Support for military commissions might make sense, if the commissions themselves weren't so ineffective and soft. Gude explains, “military commissions have never handled a single case of murder or attempted murder and have doled out shockingly short sentences to terrorists—even to a close associate of Osama bin Laden.”  Moreover, “since their formation in November 2001, military commissions have only had one trial, negotiated one plea bargain, and convicted one defendant after he boycotted the proceedings,” while sustaining multiple supreme court challenges.  Of the three individuals convicted in military commissions, two received sentences less than a year long. 

So why, despite the overwhelming evidence that civilian courts are the best mechanism for bringing terrorists to justice, do people like Lindsey Graham support military commissions?  Might it be do avoid drudging up the GOP's torture problem in an open criminal proceeding? That's what Adam Serwer suspects: “There's also a potentially even more cynical motivation for the bill, however. Graham, a former JAG lawyer, is the Senate's expert on military law. He helped craft the revised military commissions, so he has to know that the prior commissions were ineffective, and that the new ones still might not be constitutional. Republicans have an interest in not revisiting the torture of terror suspects in open court, so preventing a civilian trial for KSM, depending on whether or not the commissions pass constitutional muster, could mean simply putting off any kind of trial indefinitely.”

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