Banning Civilian Trials For Terror Suspects
Experts Urge Keeping Two Options for Terror Trials – New York Times
An article in yesterday’s New York Times noted that though several congressional Republicans have publicly equated a tough anti-terrorism stance with a commitment to try all foreign terrorism suspects before military tribunals, some high-ranking former Bush Administration counterterrorism officials believe that the option to try suspects in civilian courts should always be available. The article quotes a top legal adviser to the NSC under Bush as saying,
This rush to military commissions is based on premises that are not true. I think it is neither appropriate nor necessary to limit terrorism cases to either military commissions alone or federal trials alone.
These former officials note that civilian criminal trials preserve a number of options that are not available in the military court system, including the ability to threaten charges against a defendant’s friends or family members to coerce cooperation and the ability to charge defendants with crimes unrelated to terrorism. Najibullah Zazi’s cooperation and guilty plea, delivered after prosecutors threatened family members with obstruction charges, is cited as a case in point. Using the civilian prosecution process facilitates cooperation with America’s foreign partners, many of whom are more willing to extradite terror suspects to be tried in civilian courts than to turn them over for indefinite detention and military trials.
An important issue that these former Bush officials are raising, to their credit, is that the measure of whether one prosecution method or another should be used or excluded in trying foreign terror suspects should not be exclusively political or rhetorical, but also practical. In the effort to paint Miranda rights and civilian trials as an earned luxury that foreign terror suspects should not be afforded, many have lost sight of the fact that civilian prosecution is also a versatile counterterrorism tool that has proven effective in dozens of cases.
To suggest that there are cases where civilian trials are never appropriate, as Sens. John McCain and Joseph I. Lieberman have done in their recent proposal banning civilian trials for “high-value” terror suspects, suggests that, by law, all of the useful and practical tools available to prosecutors in civilian courts should be swept off the table. It also implicitly suggests that military tribunals are more successful than civilian trials in terms of putting dangerous terrorists behind bars and keeping them there, an implication that past experience does not in any way support.
The important point to be underscored here is that a successful counterterrorism strategy should be based not political or ideological motivations that limit our ability to use effective and legitimate tools at our disposal, but on level-headed evaluation of how to use all of our capabilities in concert to make America safer. Using a balanced, adaptive, and multidisciplinary approach to prosecuting terror suspects makes America and its ability to counter terrorism stronger, not weaker. To suggest otherwise, as these former Bush Administration officials have rightly pointed out, risks lessening our capabilities and limiting our options to our own detriment.
