No Comment — January 12, 2010, 11:15 am

Military Justice and the Fear Game

Watching the G.O.P. spin machine attack the Obama Administration over its decision to bring a group of serious terrorist leaders, led by Khalid Sheikh Mohammed, to trial in New York, I am puzzled by the number of rank falsehoods that go unchallenged in the media. The critics consciously disregard the fact that Eric Holder’s decisions stack up almost perfectly with those of his predecessors, Michael Mukasey, Alberto Gonzales, and John Ashcroft. In fact, there were 87 federal court prosecutions of Al Qaeda-linked terrorists in the Bush years, according to a study by New York University’s Center for Law and Security, compared with six military commission actions. The prosecutors also achieved better outcomes in federal court by almost every measure—conviction rates, length of sentences, and time from bringing charges to conviction—than they did in military commissions. You would think Republicans would be proud of this accomplishment by a Republican Justice Department. But now it seems a politically inconvenient fact, best quickly forgotten, or even papered over with lies.

The other serial distortions concern the military justice system. Republican talking heads speak as if the military commissions really were kangaroo courts, stacked against the defendants, who would have no right to confront evidence against them, no right to counsel—and they note these things approvingly. This is a gross libel against America’s military justice system. Our system has it flaws, as any justice system does, but it’s also both efficient and just, and the assumptions of many of these politicians (some of whom actually seem to have law degrees) are simply wrong. In an interview with the Huffington Post’s Sam Stein, my friend Brigadier General James Cullen (USA, ret’d) sets the record straight:

If Republican critics of President Obama are to be believed, the administration made one of the biggest blunders in national security history when it placed the accused underwear bomber in the criminal justice system as opposed to the military alternative. Umar Farouk Abdulmutallab was about to spill the beans on all of al Qaeda, the argument goes, before the White House tied both hands behind its back — unilaterally limiting the type of interrogation procedures it could use on the suspect and then providing him unnecessarily with an attorney. It’s simply not true, say legal experts, including officials who formerly served in the military tribunal system.

James Cullen, a retired brigadier general who served as a JAG officer, tells the Huffington Post that there are narrow differences between the legal and interrogation proceedings Abdulmutallab was subjected to and those which would have happened in a military commission. Contrary to conventional wisdom, the suspect would have been granted access to a lawyer if he had been put in a military system. In fact, he may have had easier access to an attorney. “The military is not some type of Soviet show-trial kangaroo court,” said Cullen. “Absolutely he would have gotten a lawyer.”

[But] isn’t there a difference — with regard to the civilian and military systems — in the time that can elapse between when a suspect is captured and when he or she has to be granted legal representation? Not all that much, says Cullen. Abdulmutallab, for starters, was questioned for 30 hours before requesting a lawyer. Military personnel might have had more time. But not all that much. More broadly, even in a civil system, authorities can question a suspect without reading them their Miranda rights for a limited amount of time as long as there is “no intention to try the person” and it is “purely for intelligence purposes.” This is little different than in a military setting, where — if the detaining authority wants to prosecute the detainee — the impetus is on bringing legal counsel into the equation early on. “If you want to prosecute you can’t foul up the process,” explained Cullen.

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