A Joke, Right? Congress Moves To End Startlingly Successful Federal Program

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Senators like Lindsey Graham (R-SC), Joseph Lieberman (D-Ct.), and John McCain (R-Ariz.) are a big part of the reason why men like Khalid Sheikh Mohammed have not yet been tried before military commissions down at Guantanamo Bay, Cuba. Dozens and dozens of other short-sighted, stubborn, overzealous legislators also doomed President Bush's tribunal plans by repeatedly adopting and endorsing rules and laws they knew or should have known would be (and shortly thereafter were) repeatedly rejected by the Supreme Court.

Now many of these men are back-- including the three due process stooges above. Years after injecting constitutional poison pills into detainee legislation, which helped give us the Gitmo mess to begin with, they are threatening to block the Justice Department from prosecuting terror suspects like Mohammed in federal civilian courts. If the legislative branch of government is successfully able to bully the other two branches into submission on this topic, it'll mark the lowest point yet in our nation's legal response to the terror attacks of September 11, 2001. And that's saying something.   

Over and over again, from 2002 through the end of the Bush era and beyond, well-meaning men and women urged Graham, McCain and Company to give the detainees basic due process rights-- the right to counsel, the right to be heard, the right to see at least some of the evidece against them, the right to cross-examine at least a bit, the right to a meaningful appeal upon conviction, and so on. There is a way, these people earnestly argued, that national security interests could be protected while the terror suspects could be fairly prosecuted-- in military tribunals.

Yet each time the Congress faced the issue, a clear majority of its members insisted upon a series of rules and regulations that were constitutionally doomed before the ink on the legislation was dry. The Supreme Court-- a very conservative Supreme Court, I shouldn't have to add-- ruled against the Congress and the Bush Administration on such topics over and over again. In 2004. In 2006. In 2008. It was Congress' stubborness, and the legal stasis it generated, that has forced the Obama Administration to choose another path.

The commissions are stalled, waiting for new rules and a new set of legal challenges, a dead end. So Team Obama has come up with its own path. Controversial though it may be to some, the plan now is to de-emphasize what is not working (the military commission as a means of processing terror detainees) and to re-emphasize what is working (the role our federal courts have served for centuries in adjudicating those accused of our worst crimes). Why this is an outrage to so many people simply baffles me. Indeed, I do not recall an era in American legal history where the federal courts were held in such high disregard for such little reason.

The legislators who today say that men like Mohammed must not be prosecuted in a civilian court can point to no single example since 9/11 where a terror suspect has gotten a break in such courts. They cite no instance where a federal judge has ruined national security by bending over backward to help an Al Qaeda defendant. They offer no proof that veteran federal prosecutors are less competent than the military lawyers who would be prosecuting these suspects before commissions or tribunals.    

On the contrary, the record in favor of trying Al Qaeda operatives in our federal court is stunning for its success. Richard Reid, the "shoe-bomber" quickly pleaded guilty and got life in prison. Zacarias Moussaoui, the zany, loquatious terror conspirator who worked for Mohammed, pleaded guilty, begged for a death sentence, and was disappointed when a federal jury in Virginia gave him life. Even Jose Padilla's criminal trial turned out great for the feds; they got a quick verdict despite an appalling lack of strong evidence against the defendant. All of these trials, I shouldn't have to add, were directed by Bush-era prosecutors. 

Having tried too hard to thwart the rights of terror suspects; having directly delayed justice for Mohammed's alleged victims; having endorsed (or at least tolerated) civilian terror trials for a Republican president but not a Democrat one, it is nearly comical that these legislators now would be willing to talk crazy about eliminating funding for federal terror trials. I can't imagine the White House will tolerate such a threat to its executive-branch power. And I don't expect the courts will look too kindly upon it, either. You can see the headline now: Acting boldly, Congress moves to eliminate startlingly successful terror-trial program administered by able, veteran judges! It's a joke, right, with a cosmic punchline somewhere?  

All my way of saying that Senators Graham, Lieberman and McCain should have a little more shame and a little less voice when it comes to "helping" the government deliver a new measure of closure, if not justice, to all of the victims of September 11, 2001. 

Photo credit: Chris Kleponis/Getty Images

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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