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.

Share
Single Page

More from Scott Horton:

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

No Comment March 28, 2014, 12:32 pm

Scott Horton Debates John Rizzo on Democracy Now!

On CIA secrecy, torture, and war-making powers

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2014

The End of Retirement

= Subscribers only.
Sign in here.
Subscribe here.

The Octopus and Its Grandchildren

= Subscribers only.
Sign in here.
Subscribe here.

Francis and the Nuns

= Subscribers only.
Sign in here.
Subscribe here.

Return of the Strongman

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“From the nerd squabbles of Internet discussion threads rose an urban legend that culminated in a film that hinges on digging through my town’s trash.”
Illustration (detail) by Timothy Taranto
Article
Return of the Strongman·

= Subscribers only.
Sign in here.
Subscribe here.

“If Tunisia is where the Arab Spring began, Egypt seems poised to become its burial ground.”
Photograph (detail) © Ahmed Ismail / Getty Images
Article
The Seductive Catastrophe·

= Subscribers only.
Sign in here.
Subscribe here.

“The world’s leaders were moved by a populace fused into a forward phalanx, were shaken by a tidal wave of militancy jubilantly united.”
Photograph courtesy Mary Evans Picture Library
Article
Me, Myself, and Id·

= Subscribers only.
Sign in here.
Subscribe here.

“The one defining trait of the narcissist is that it’s always someone else.
Painting (detail) by Gianni Dagli Orti
Post
The Many Faces of Boko·

= Subscribers only.
Sign in here.
Subscribe here.

“People want education. Open a school and they will rush.”
Photograph © The author

Average number of sitcom laughs an American hears during a prime-time season:

12,000

Czech and German deer still do not cross the Iron Curtain.

British economists correlated the happiness of a country’s population with its genetic resemblance to Danes.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today