No Comment — November 17, 2009, 10:43 am

Hang 'Em High!

Former Bush Administration Attorney General Michael B. Mukasey addressed the Federalist Society only hours after his successor, Eric Holder, announced his plan to bring a group of Guantánamo prisoners up on federal charges in Manhattan. He offered harsh words, claiming that the trials would prove a “circus.” Such attacks on the nation’s criminal justice system have become routine on the political right.

Take the Weekly Standard’s Bill Kristol, who responded to Homeland Security Secretary Janet Napolitano’s promise to bring the Fort Hood shooter to justice with these words:

I was very struck also by Janet Napolitano’s comment, I hadn’t read it before to see her say that, that the number one priority is to bring him to justice is such a knee-jerk comment and such a stupid comment. He’s going to be brought to justice. He is not going to be innocent of murder. There are a lot of eyewitnesses to that. They should just go ahead and convict him and put him to death.

This is the attitude of a lynch mob, being disseminated on Fox News. A few days later, the topic turned from Fort Hood to the trials of Guantánamo prisoners, and the language was no less hyperventilating. “Hang 'em high” tweeted Kristol acolyte Sarah Palin. Other prominent Republicans claimed that the trials offered the prospect of terrorists being acquitted and turned loose. The possibility of an acquittal can’t be excluded, of course, but, believe it or not, in our system acquittal does not necessarily lead to immediate release.

One thing that emerges very quickly from a survey of these comments is a dismissive attitude to the Constitution, the criminal justice system, and the need for a careful investigation of the facts and evidence. It’s clear that they’re really focused on politics, not justice. This attitude is not without parallels in the world and in human history. Kristol’s comments perfectly track those of another prominent political figure of the late twentieth century:

There is no reason why a criminal should be tried in the first place … Once his identity is established, he should be killed right away.

That was Ayatollah Khomeini, and the operational demonstration of this principle came in the firing squad execution of thousands of Iranians, especially during the nation’s war with Iraq.

Based on years of studying and dealing with the military’s criminal justice system, I have great confidence in the ability of the CID, working with other investigators, to get to the bottom of the facts surrounding Major Hasan, of military prosecutors to charge him, and of a court-martial to try him and render an appropriate verdict. This process works. It is fair, swift, and renders results that have withstood the test of time. The military justice system is not perfect, but it is far more likely to render justice and uphold our values as a nation than the non-process that Kristol and his friends endorse.

As for the war-on-terror prisoners, most of the commentators seem conveniently to miss the fact that there’s nothing new about trying terrorists in court. Indeed, the Bush Administration, just like the Obama Administration, pursued two tracks—most cases by far went to federal criminal court and a tiny handful went to military commissions. All that is happening now is some fairly minor adjustments in the gate deciding which cases go where, driven by a desire to secure prompt convictions for prisoners believed guilty of serious crimes.

A compelling study completed last week by NYU’s Center on Law and Security looks at counterterrorism prosecutions brought by the Bush and Obama Administrations. It notes 828 indictments by the Justice Department on terrorism charges. Of the resolved cases, 88.2% resulted in conviction. The strongest track record was achieved in the Southern District of New York, which, unsurprisingly, is just where Holder wants to send these cases. How does this record stack up to that of the military commissions? On every criterion–time from indictment to conviction, obtaining a conviction, length of sentence meted out—the prosecutors achieved better results in federal court than they did before military commissions. It’s no surprise that the crticisms of the Holder decision dwell on sweeping generalities and cold fear. A careful examination of the facts dispels all their claims.

Will the trials be a “circus”? No doubt there will be a circus on Fox News and in the pages of the Weekly Standard. But in the courtroom? An example is furnished by the case of the “blind sheikh” Omar Abdel Rahman, tried in a New York courtroom in 1995. The government charged that he planned to set off five bombs simultaneously, striking the United Nations, the Lincoln and Holland tunnels, the George Washington Bridge, and a federal building housing the FBI. They showed videotapes of defendants mixing bomb ingredients in a garage before their arrest in 1993. The trial was a major test of the ability of prosecutors to present a terrorism case and of federal judges to manage it. The defendants wanted to use the case to turn themselves into martyrs, but the case was handled with exemplary decorum and fairness, producing convictions in 1995. There was no “circus.” The judge who presided over the case made his reputation through it. His name is Michael Mukasey.

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