Via Spencer Ackerman, Ken Gude has an excellent new piece pushing back on conservative myths surrounding the use of military commissions, in particular the notion that trying terrorists by military commission magically results in better evidence collection. As I've written before, while civilian courts have tried hundreds of terrorism cases, the military commissions under Bush tried a grand total of three cases, and of those only one still remains imprisoned. Trying a detainee by military commission doesn't deny him access to a lawyer, and a hardened terrorist doesn't need a lawyer to tell them to stop talking. Gude also points to several terror suspects, such as Brent Vinas and David Headly, who have given the U.S. vital intelligence despite being given access to counsel.
Gude also points out a pretty egregious moment of doublespeak on the part of conservatives who have emerged in opposition to fair trials, including former Attorney General Michael Mukasey. As a judge in 2002, Mukasey issued a ruling that rejected the notion that access to representation would hurt intelligence gathering:
In that case, the Bush administration argued against granting access to attorneys specifically on the grounds that it would jeopardize “gathering intelligence on the enemy.” Judge Mukasey rejected that position, holding that “the interference with interrogation would be minimal or nonexistent.” Mukasey ordered the Bush administration to allow the detainee, José Padilla, access to his attorney. The small number of others also held without charge by the Bush administration in the United States have had similar access to lawyers.
Meanwhile, this is what Mukasey wrote in the Wall Street Journal about alleged underwear bomber Umar Abdulmutallab last week:
Those considerations, however, are entirely academic because Abdulmutallab was proceeded against—if that is the correct description—in a civilian tribunal where the first step was to get him a lawyer who promptly put an end to his disclosures. The point is less where Abdulmutallab will eventually be prosecuted than what use could have been made of him as an intelligence source. No consideration whatsoever appears to have been given to where Abdulmutallab fits in the foreign contingency operation (formerly known as the global war on terror) in which we are engaged.
Gude writes, "It's remarkable that former Attorney General Mukasey would forget that inconvenient detail to his argument about holding Abdulmutallab in military custody since he was the judge in the 2002 ruling." Of course, Mukasey didn't forget. He just didn't realize as a judge in 2002 that the GOP as a party would stake its political fortunes on being opposed to due process for people accused of certain crimes.
Support for the military commissions isn't about keeping America safe, it's about craven political calculations. The GOP thinks they can win on this issue, and they don't care what it does to basic constitutional rights.
Gude makes another point about plea baragains and terrorism that is worth repeating:
Preventive detention also runs the risk of imperiling intelligence gathering. Questioning suspected terrorists while they are held without charge surrenders leverage, which is one of the best weapons available to interrogators. Detainees held without the prospect of trial have no incentive to cooperate with the government. The only mechanism that interrogators then have to get the detainee talking is sound technique. While that certainly can work on its own, it is unclear why anyone would want to unilaterally remove a powerful tool to get suspected terrorists talking.
Conservatives balk at the notion that terrorists should be given "plea bargains," but we're not talking about letting people out on parole with community service. Indefinite detention removes the incentives suspects have to cooperate and provide valuable information.
Besides, it's not as though plea bargains don't exist in military commissions, which have a worse track record than civilian courts in terms of handing out tough sentences. David Hicks, who pleaded guilty to material support for terrorism charges and whose military commissions trial ended in a plea bargain. He received a nine-month sentence in addition to six years time served. As Gude points out, his total time in custody was less than a third of that given to "American Taliban" John Walker Lindh, who was tried in civilian court.
-- A. Serwer
