Former Bush DOJ Officials Back Holder on Trial of 9/11 Suspects
James Comey and Jack Goldsmith, high-ranking Department of Justice officials under Bush, have an op-ed in the Washington Post defending Attorney General Eric Holder's decision to prosecute Khalid Sheikh Mohammed and four other detainees in federal criminal court instead of a military commission proceeding. The conclusion is fine:
But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.
In reaching that correct assessment, however, there's a few statements I take issue with. They posit that Holder made the decision to keep the U.S.S. Cole detainees in a military proceeding not for the reasons he said (that the attack happened outside the U.S.) but because the case against them is weak and the chance of conviction is greater in a military commission trial. In other words, Holder forum-shopped (as, they say, Bush's DOJ did before him) and there's nothing wrong with that. I think when it's done hoping to skirt the requirement of proof beyond a reasonable doubt because you know you can't meet it, there's definitely something wrong with it.
As to military commissions, they write that despite "relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them," military commissions only offer the Government "a "marginal advantage." Sorry, but those aren't the only disparities and even the revised commission procedures provide a big advantage towards conviction over a federal criminal trial -- and an unfair one.
They also predict Obama will continue with indefinite detentions of the Guantanamo detainees not charged with crimes, and they seem to have no problem with it:
It is also likely that the Justice Department will decide that many other terrorists at Guantanamo Bay will not be tried in civilian or military court but, rather, will be held under a military detention rationale more suitable to the circumstances of their cases.
"More suitable?" How is continued military detention ever suitable for someone who has never been charged with a crime? Or for someone a court has determined was unfairly declared by the Bush Administration to be an enemy combatant? Are they suggesting the Government will only indefinitely hold uncharged detainees who are guilty of something terrible, but we just couldn't prove it without their inadmissible statements made under torture? I don't believe for a minute those are the only ones who will be indefinitely detained, and I don't like giving the Justice Department or the military the sole discretion to make the call. "He's guilty and dangerous, we just can't prove it, so we're not going to try" should never be a license to imprison someone forever.
There's also a statement I find particularly grating, especially coming from lawyers:
The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed...
"Obviously guilty?" Did I miss the trial?
To sum up the authors' views: the procedural advantages of military commissions are only "potential" not real ones, and if such advantages do exist, they are "relatively unimportant," but KSM is "obviously guilty."
At least they got the ending right, so I'll reprint it again:
Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.
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