Are Military Courts Soft on Terrorism?

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The civilian justice system has its flaws, but no one can argue that it hands lenient verdicts to terror suspects

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Reuters

Federal prosecutors have succeeded in winning yet another guilty verdict against an accused terrorist: Tarek Mehanna, a 29-year-old Egyptian-American, was convicted on material support charges and conspiring to kill Americans. His trial was controversial, at least among civil libertarians, because much of the evidence against him was arguably protected political speech -- propaganda he distributed over the Internet. 


The prosecution also relied heavily on the testimony of Mehanna's former friends and acquaintances whom the government "persuaded" to cooperate and inform on him. But the jury reached its verdict quickly: after a trial that lasted some two months, jurors deliberated only 10 hours before finding Mehanna guilty on all counts. He faces a possible sentence of life in prison.

This was a preventative prosecution: Mehanna was not charged with committing any terrorist acts; he was charged and convicted of what prosecutors and jurors considered his terrorist inclinations or intent, based on his speech and a trip to Yemen allegedly to obtain terrorist training. (He claimed he was seeking religious education.) In other words, he was convicted on the basis of suppositions about crimes he might commit in the future. 

But while this was a very questionable and ominous verdict, it was also a predictable one. Mehanna was not a sympathetic defendant, and civilian courts have produced more convictions and longer sentences than military commissions in terrorism cases, as advocates of civilian trials have persistently stressed (to no avail). 

"Two of the three individuals convicted on material support charges in military commissions have already been set free," the Center for American Progress observed earlier this year, "while criminal courts dole out much longer sentences of at least 15 years. The prime example of this was the case of Salim Hamdan, who was acquitted by a military commission of conspiracy but convicted of material support for terrorism for serving as Osama bin Laden's driver. His sentence was five months, and he was returned home to Yemen by the Bush administration." 

Meanwhile, Ahmed Ghailani, acquitted of all but one of 285 counts against him in civilian court for his role in U.S. embassy bombings, was sentenced to life imprisonment on one count of conspiracy to destroy government property.

Ghailani's sentence is not exactly a tribute to the fairness of civilian prosecutions, but it does suggest that the civilian system is sufficiently malleable to ensure that, one way or another, it will generally favor the government in terror cases. Civil libertarians still favor civilian prosecutions, because they're public and afford defendants some due process: If Tarek Mehanna was wrongly prosecuted and convicted, he was, at least, convicted by fellow citizens and well-represented by counsel, who will file an appeal.

But anti-libertarians, who assume that all suspected terrorists are actual terrorists and focus on outcomes, not fair processes, should also favor civilian trials, given their record in terrorism cases and the legitimacy they confer on convictions. The tendency of civilian terror trials to end in convictions and lengthy sentences is not lost on detainees, one lawyer for Guantanamo detainees told me; given the choice, his clients would prefer to be tried before military commissions.

So, if you were in a demagogic mood, you might assert that anti-libertarians and putative anti-terror warriors opposed to civilian trials for terror suspects were soft on terrorism; you might even label them collaborators, working to provide terror suspects with the trial venues they prefer. Or, if you wanted to be fair, you might say, instead, that they were stupid on terrorism. 

You might wonder how empowering the military to take custody of terror suspects will advance the war on terror. Will it apprehend and deter actual terrorists or impede their prosecution (as FBI Director Robert Mueller has suggested) or, as in the case of Guantanamo, will it arguably aid in recruiting them? Will it chill political dissent by exposing dissidents to charges of terrorism and threats of arbitrary imprisonment? Opposition to civilian terror trials may be smart politics (a majority of Americans favor military commissions), but politics can make us stupid, vulnerable to fear mongering and gratuitous deprivations of rights.

The civilian criminal justice system is deeply flawed, corrupted by the drug war and mandatory minimum sentencing, among other injustices, and federal prosecutors wield formidable power, inadequately restrained. They can use civilian courts to convict people of bad thoughts and bad intentions, as the Mehanna case showed. 

Yet civilian terror trials are anathemas to politicians striving to prove their toughness on terror -- because, for all their inequities, civilian courts are still inclined to recognize that criminal defendants have rights. There's little reason to believe that the drive to discredit the civilian system will make us less safe, but it surely makes us less free.
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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