Wednesday, May 28, 2008

It really IS a law enforcement issue

Despite what the JAG officers are saying, despite what all of the evidence tells us, the Bush Administration still doesn't understand how to put terrorists on trial:

Two former U.S. federal prosecutors say that when it comes to handling accused terrorists, the best way is the old way: Put them on trial in civilian courts, not military tribunals.

In a report examining 123 terrorist cases from the past 15 years, the two principal authors say that the courts were able to produce just, reliable results while protecting national security.

The report comes at a time when the Bush administration's system of military commissions remains mired in delays.

Whether the case is the first attack on the World Trade Center in 1993 or the East African embassy bombings in 1998, judges, juries, defense attorneys and prosecutors are able to get the job done correctly, they say.

The study, commissioned by Human Rights Now, blows the lid off the age-old lie that the courts can't do the job when it comes to putting terrorists on trial:

Recently, some commentators have proposed an entirely new "national security court" to handle some or all international terrorism prosecutions. Although proposals vary, many offer novel features that would give the government more power and make it easier for the government to secure convictions. However, creating a brand new court system from scratch would be expensive, uncertain, and almost certainly controversial. Indeed, there is the risk that the very same issues now debated simply would be transferred to a new arena for resolution. In our view, before dramatic changes are imposed-such as the creation of an entirely new court or new detention scheme-it is important to take a step back and evaluate the capability of the existing federal courts and the existing body of federal law to handle criminal cases arising from international terrorism. Given the strength and vitality of our existing court system-and the fact that it reflects in many ways the best aspects of our legal and cultural traditions-there are obvious advantages to relying on the existing system, provided that it is up to the job.

Our analysis of the capability of the federal courts to handle criminal cases arising from international terrorism is based heavily on the actual experience of more than 100 international terrorism cases that have been prosecuted in federal courts over the past fifteen years. Based on our review of that data and our other research and analysis, we conclude that, contrary to the views of some critics, the court system is generally well-equipped to handle most terrorism cases.

Finally--someone stands up and says that the American belief in the rule of law actually means something.

Locking people up and torturing them has left us with nothing--nothing we can prosecute, nothing we can be proud of, nothing to stand on, and no claim whatsoever to be on the side of the rule of law. The following list should be understood, remembered, acknowledged, enacted and acted upon as soon as someone with a soul and an ounce of common decency takes responsibility for the people we're holding.

In the Pursuit of Justice finds:

--Prosecutors have invoked a host of specially tailored anti-terrorism laws and long-standing federal criminal statutes to obtain convictions in terrorism cases;

--Courts have consistently exercised jurisdiction over defendants brought before them, even those defendants apprehended by unconventional or forcible means;

--Existing criminal statutes and immigration laws provide an adequate basis to detain and monitor suspects in most cases;

--Applying statutes such as the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act (CIPA), courts have successfully balanced the need to protect national security information, including the sources and means of intelligence gathering, with defendants' fair trial rights;

--Courts have devised creative approaches to balancing defendants' right to receive exculpatory information and other relevant discovery with the need to protect national security information;

--Miranda warnings are not required in battlefield and non-custodial interrogations or interrogations conducted purely for intelligence gathering purposes, and the Miranda issue does not have significant implications for criminal terrorism prosecutions;

--The Federal Rules of Evidence, including rules that govern the authentication of evidence collected abroad, provide a common-sense, flexible framework for guiding admissibility decisions;

--Terrorism trials have not presented novel speedy trial problems;

--The Federal Sentencing Guidelines and other applicable sentencing laws prescribe severe sentences for many terrorism offenses, and experience shows that terrorism defendants have generally been sentenced to lengthy periods of incarceration; and

--Courts are generally able to assure the safety and security of trial participants and observers.

And, finally, a little honest pushback against the wingnuts:

In the Pursuit of Justice recognizes that the civilian criminal justice system is not, by itself, "the answer" to the problem of terrorism. Intelligence gathering, diplomacy, interrupting the flow of terrorism financing, and military force are all part of the equation. But the White Paper demonstrates that the criminal justice system is capable of bringing terrorists to justice through procedures that are fair, and seen to be fair, while protecting vital national security interests.

Let the courts decide--and let the courts get to the bottom of that whole "domestic spying" thing, too.

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