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Where to hold the terrorism trials
both civilian and military trials may be fair and reasonable

I will get right to the point.

I believe the public discussion about the merits of civilian trials vs. military tribunals is misplaced—depending on the case, both can meet tests for fairness and reasonableness.

Terrorists apprehended overseas in military operations are clearly ‘enemy combatants’. They should be afforded all the rights, and lack thereof, provided in the Geneva Convention. As such, they do not have a right to a trial and can be held until military hostilities have ended. That they belong to a non-government entity is a technicality that does not preclude treating them as per the Geneva Convention (Article 5).

On the other hand, terrorists apprehended during the course of terrorism events against civilians on American soil, as well as accused American citizens, might reasonably be regarded as ‘enemy combatants’ or criminals. As ‘enemy combatants’, I don’t believe they have a right to a trial according to the Geneva Convention. But in part because of the murkiness of their legal classification, the Supreme Court has afforded some a right to a trial. Thus, many will have to be tried. No worries. It may be to the American government’s advantage to try many of them because life and other severe punishments may ensue.

So, the question of the day is where to try them.

I believe that entities within both sides of the political spectrum have elevated this issue to a political level that can only be rationalized by acknowledging that their motive is service to their special interest rather than the country. The Left (e.g., ACLU) has advocated for personal rights for these terrorists commensurate with those afforded to everyday Americans who may have gone astray briefly in a singular criminal event. Their argument is almost without regard to national security concerns. The Right has argued that national security interests require that the trials be held by military commissions, almost without regard to objective data about the efficacy of the two legal systems for terrorist cases.

Thus, neither of these arguments is reasonable. Terrorists are not common criminals and their trials must be handled differently (e.g., Classified Information Procedures Act of 1980). And civilian courts can successfully try and convict terrorists, supporting national security interests. In fact, of the 200 or so terrorists brought to trial in civilian federal courts, over 90% have been convicted. In contrast, of the three military tribunals, only one has resulted in a conviction—likely to due to lack of clarity about the terrorists’ legal status and consequent trial procedures.

The Left and Right should at least agree that from a moral point of view, both civilian trials and military commissions may be reasonable. There is just so much political oxygen available and both sides are using it up at the expense of addressing other more important issues affecting Americans (e.g., health care reform, comprehensive energy legislation).

There are practicalities that must be considered. A practical advantage of having civilian trials is that the international community will regard these as more legitimate (whether this conclusion is evidence-based or not). Another potential advantage is that predicted conviction rates may actually be higher in the civilian legal system. However, the economic and other disruptive consequences of civilian trials must be taken into account. The currently planned trials have been purported to cost $200 million to $1 billion, depending on where they are held.

A moral imperative argued on behalf of holding the trials in civilian courts must be compared with other moral imperatives, such as fighting poverty, providing health care, and addressing environmental threats. For example, such expenditures could otherwise be used to provide health insurance for one year to 14,286 to 71,429 uninsured American families (assuming an average annual family premium of $14,000). These numbers are staggering and should not be ignored in deciding on where to hold the trials.

So, let us transfer the decision about how and where to hold the trials to professionals (the Attorney General, Mr. Holder) who can weigh case-by-case objective factors, including likelihood of a successful prosecution, cost, and security and other disruptive effects. For example, an extraordinarily expensive and disruptive trial held in Manhattan seems unreasonable. On the other hand, if the Attorney General determines that secure and reasonably cost-effective civilian trials can be held for some of the terrorists at the Stewart Air National Guard Base (Newburgh, NY) in NY’s Southern District (which has successfully prosecuted terrorist cases), this is reasonable. If this cannot be accomplished for some of the terrorists, holding military commissions for these is also reasonable.

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