Over the past few days, two men who have spent their careers in the American justice system committed their considerable public status to the idea that the system is useless against terrorism. Former Attorney General Michael Mukasey all but predicted that New York would suffer a terrorist attack as a result of Khalid Sheik Mohammed and the alleged 9/11 conspirators being transferred there for trial. Meanwhile, New York Mayor and former federal prosecutor Rudy Giuliani suggested we should try KSM by military commission. On Friday, Giuliani appeared on FOX News and said (via Nexis):
There are going to be military tribunals for other terrorists. Why wouldn't you have military tribunals for this terrorist? And of course it's going to create more security concerns. Just wait and see how much money New York City spends on this in order to protect him.
And finally, we're kind of granting his wish. His wish was to be brought to New York. It really makes no sense to me to be granting him his wish. He should be tried in a military tribunal. He is a war criminal. This was an act of war.
We made this mistake once before in 1993. We didn't read the intentions correctly. And then we ended up with three more attacks on American soldiers and the attack of September 11th.
That's quite the insinuation.
But let's take Giuliani's suggestion about "military tribunals" seriously. In the time between the Bush military commissions were proposed and implemented and the Obama administration came into office and suspended them, the commissions tried three terrorism cases.
According to Human Rights Watch, the civilian courts tried 145.
Human Rights First examined the government's success rate in trying terrorism cases in civilian court and found the government had a 91 percent success rate, with the government managing to get those acquitted in the remaining 9 percent imprisoned on lesser charges after the fact. That's a track record so good it should make us question whether the system is working properly on behalf of the defendants.
Back in the 1990s, following the trial of the first World Trade Center bombers, Giuliani said, “I think it shows you put terrorism on one side, you put our legal system on the other, and our legal system comes out ahead.” Well, that's the kind of thing that you would expect a former federal prosecutor to say. But in this case, conservatives -- even those who have worked in the American justice system their entire lives -- have decided that the system no longer works, either out of an irrational fear of terrorism or because they all think denigrating the established institutions of American democracy is worth scoring a few partisan points on the president.
One of the most important and fundamental insights of conservatism, it seems to me, is the idea that you don't throw existing institutions in the trash -- especially not if they're working -- just to try something new. Well, the Bush administration tried to do just that. They tried to reinvent the wheel with "military commissions" that would reverse engineer convictions while giving the illusion of due process. Because their commissions didn't pass constitutional muster, they were all but useless in trying terrorism suspects. Meanwhile, the criminal justice system functioned properly and efficiently.
We'll have to wait and see if the Obama administration version works any better. But choosing to try KSM and the alleged 9/11 conspirators in civilian courts seems to me as less of a gamble than trying to do it by military commission.
Glenn Greenwald wrote over the weekend that the hysteria over KSM is the textbook definition of "surrendering to terrorism." I think it's actually worse than that. The United States will never be invaded and defeated by al-Qaeda. The only way al-Qaeda wins is by manipulating Americans into destroying their own society in an effort to "protect" it. It's why the founding fathers had the president swear an oath to defend the Constitution, rather than the people of the United States: They knew how the latter oath could be perverted into helping destroy the nation they were trying to build.
-- A. Serwer