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