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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Prosecuting Terrorists in Federal Court – Room for Debate –

The New York Times has posted exactly the type of debate we have tried to have in class.  They have brought together six knowledgeable people (five are academics, plus Andy McCarthy whom I am guessing does not wish to be so labelled) to answer the question: "What does the Ghailani case and verdict tell us about whether federal court is an appropriate forum for trying Guantánamo detainees?"

In our course, we have used writings from five of the six (Diane Marie Amann is the exception).  The real lesson seems to be re-enforcement.  That is, it seems that the Ghailani case and verdict told each of them what they wanted to hear.  Glenn Sulmasy finds support for creating a hybrid court.  That, of course, was the central argument of his book that was assigned for class.  Andrew McCarthy sees support for the proposition that such people should not be tried in federal district court, which, again, was the central argument of his writings discussed in class (Willful Blindness: A Memoir of the Jihad).  And so forth.

Once again, Orin Kerr took the words right out of my mouth.  This has happened on a variety of topics.  He publishes what I think while I am still writing it down.  He is fast, and I think that he is correct, again:

It's hard to draw a lesson from just one case. The law here is largely unsettled, so every trial judge is going to rule on it differently. And every jury will have its own dynamics.

As a result, drawing lessons from one case is a risky proposition. Most people, experts and non-experts alike, will see the verdict in a way that simply confirms whatever views they had before.

We should be particularly cautious because Ghailani hasn't been sentenced yet. According to news reports, he's facing 20 years to life. If the judge sentences Ghailani to a life sentence, that's pretty different from a sentence of 20 years. And what happens when the 20 years are up: will Ghailani be set free, or will he then be detained again on national security grounds? We don't know yet. [Full article at this link.]

I think that is right.  There was, perhaps, a more forceful argument for taking Ghailani into federal court than for other unlawful enemy combatants, because he was indicted before the United States started using military detention pursuant to the authorization for use of military force.  The progress of the case, which is far from over, simply illustrates things already known: Article III courts are good at some things and not at others.  Generally, Article III courts can handle most terrorists, but they do have limitations.  They are not truth-seeking commissions; they will suppress reliable evidence at times.  They carry increased risk of revealing classified sources and methods.  They are generally in urban areas that are difficult to secure.  They provide a soapbox for defendants (not used by Ghailani, yet) and a concomitant opportunity for the government to educate the public about terrorists.  The statutes available are a mess, yet generally sufficient for conviction.  Etc.  Our course has, of course, spent 2100 minutes of class time discussing these and several other attributes of the various fora in which terrorists might be tried.

In the end, my personal judgment is that the (largely intangible) benefits of using the Article III courts to try terrorists usually outweigh the risks and costs — but not always.  Anyone who has examined the now-declassified facts of ex parte Quirin (I recommend the book They Came to Kill by the NY Times reporter who covered the 1942 trial) knows that a public trial for those Nazi saboteurs would have revealed to Hitler how porous our coastline was.  One of the saboteurs literally had to turn himself in to the FBI three times before agents believed he was a Nazi Marine.  Unpredictable as Hitler may have been, President Roosevelt was certainly reasonable in believing that revealing the facts of the case would have led to many more Nazi landings on the coast of the U.S. and to subsequent American loss of life.

You can read the entire NY Times debate at this link: Prosecuting Terrorists in Federal Court, 11/18/2010.

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