I just got off the phone with Eugene Fidell, a military-law expert who teaches at Yale Law and whom has been advocating for trying terrorist suspects in federal court rather than the military commissions about to be revived by the Obama administration.
“One of the things we're trying to do is impose the moral stigma of a crime here," says Fidell. "The best way to do that is to use the District Courts, which are the crown jewel of our legal system. Everyone knows they're the best in the world.” I asked Fidell about arguments on the right that terrorists are not mere criminals--in the words of one senator, "These men didn't rob a liquor store."
Fidell responded, “It seems to me that people were saying several years ago that these people didn't deserve to be treated as if they were honorable soldiers. Fine, treat them as criminals!”
Fidell added, “My view continues to be that these cases should be tried in federal district court unless someone can explain to me why they can't be tried there. If Eric Holder wants to get up and certify, we can’t prosecute it, and here’s why, I’ll listen. But I’m not going to take anyone’s word.”
That's when it struck me: we've never gotten an answer to this question. In fact, we're conditioned not to ask it. Despite having been lied to by the government over the past eight years when it came to weapons of mass destruction in Iraq, the presentation of Iraq as a "ticking time bomb" situation, the use of torture in interrogations, or the warrantless surveillance of American citizens, as a citizenry we've been successfully conditioned not to ask questions when it comes to issues of national security. The kind of criminal charges most likely to be leveled against suspected terrorists, providing material support to terrorism, or conspiring to provide material support to terrorism, are incredibly broad. We've had a great deal of success in trying terrorists in civilian courts. And yet despite having been misled time and time again by nebulous arguments about national security, few people are really asking, "Why can't we try these people in federal court?" The Obama administration has simply asserted, "They can't."
And we've learned just to take their word for it.
-- A. Serwer
