Sen. Lindsey Graham likes to put the case for military commissions trials of suspected terrorists this way:
These are not common criminals who robbed a liquor store. They are warriors committed to their cause which is the destruction of our nation. When captured, they need to be tried as a military threat under the rules of military law. Military commissions, not federal district court, are appropriate venue for these trials.
This is what I like to call the "Liquor Store Fallacy." See, the implication is that civilian courts only deal with petty crimes: Your peeping Toms, your drunk drivers, that mischievous neighbor who keeps stealing your paper or lets his dog poop on your lawn. In the conservative imagination, a civilian court looks like an episode of Judge Judy.
That view is completely false. America's military lawyers are among the best at what they do, but unraveling international criminal conspiracies is not what they usually do. They deal with murders, assaults, thefts. “It runs the complete gamut," says Eugene Fidell, president of the National Institute of Military Justice and Yale Law professor. "It’s everything from being AWOL to murder. The military justice system covers essentially any crime by a military person, doesn’t even have to be service-connected anymore," Fidell says. "You could get prosecuted in a court-martial for failing to pay your taxes."
What about liquor store robberies?
"I'm sure it's happened," Fidell says.
What about crimes of the kind of magnitude al-Qaeda represents -- an international criminal terrorist conspiracy?
"Never!" Fidell says.
In fact, military commissions are supplemented by legal expertise from the civilian world -- both from the Justice Department and military lawyers who also practice law in a civilian capacity -- in order to help the commissions function as a brand new legal system, precisely because of military lawyers' lack of experience in handling such cases.
Graham hinted at this issue in yesterday's hearing when he said that civilian courts would be appropriate for say, terrorism financing cases. Why? Because civilian courts deal with international criminal conspiracies, and military courts don't. Now Graham is, himself, the Senate's leading expert on military law. He is a former JAG lawyer. So he knows military courts aren't used to trying these cases and are in fact more used to trying "liquor store robbery" small crimes.
When you think about it, that makes sense. How many of America's soldiers have turned out to be members of international criminal conspiracies, let alone terrorist organizations? Possibly only -- and very recently -- Nidal Malik Hasan, the Fort Hood shooter. That's why military lawyers aren't used to trying these cases. And it's why the whole "robbed a liquor store" meme is a complete fallacy.
Besides, Fidell adds, "Muslim extremists don't drink liquor."
-- A. Serwer
(Superbad)
