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Politicizing Prosecutions — Again

Congress’ ban on using defense funds to transfer Guantánamo detainees into the U.S., meant to thwart their trials in civilian courts, is textbook interference with prosecutorial discretion.

Published: January 24, 2011

Published in The National Law Journal.

Congress’ attempt to ban detainee transfers is a textbook case of political interference with prosecutorial decision-making. At best, it is “political” in the original, nonpejorative sense of the word — it is based on broad considerations of how to govern the body politic, rather than the narrower, case-specific questions that prosecutors may appropriately consider. At worst, it is “Politics” with a capital “P” — the bitter party politics that characterize almost every facet of legislative activity in today’s Congress. And there is plenty of reason to think the worst, as the reasons lawmakers have offered for their opposition to civilian trials make little sense.

Take, for example, the notion that military commissions will be more effective than civilian courts at bringing terrorists to justice. Since Sept. 11, 2001, there have been more than 200 terrorism convictions in civilian courts, while military commissions have produced only five convictions (and even these are on shaky legal footing due to constitutional flaws in the process). True, the latest terrorist to be convicted in a civilian court was acquitted of all but one charge, but this fact will not seem particularly significant to him as he serves out his sentence of 20 years to life in a maximum security prison.

Lawmakers’ claims that acts of war must be prosecuted in military commissions are equally off-base. Acts of terrorism directed at U.S. citizens are violations of U.S. criminal law, and U.S. courts unquestionably have jurisdiction over them. An appropriately constituted military tribunal may share jurisdiction over crimes that also constitute violations of the law of war, but scholars agree that “material support for terrorism” and “conspiracy” — the primary charges at issue here — don’t qualify.

Least convincing of all is the idea that housing suspected terrorists in the United States poses a security risk. Terrorists have been held in U.S. prisons for decades, and no one has ever escaped from a so-called “supermax” prison. Lawmakers may claim that their hands are tied by the wishes of their constituents, but in fact, those same lawmakers are the ones who stoked their constituents’ “not in my backyard” fears in the first place.

Partisan politics alone explains the transfer ban. If Khalid Sheikh Mohammed and other alleged Sept. 11 plotters were convicted in civilian courts, the Obama administration would rightly receive the credit for bringing them to justice. Moreover, the convictions would serve as a repudiation of the previous administration’s policies. So Republicans have masterfully (albeit wrongly) portrayed trials in civilian courts as risky and inappropriate. Tired of getting beat up on this issue, and lacking the internal discipline to launch a counterattack (or even an effective defense), Democratic lawmakers have essentially given up, reportedly agreeing to the transfer ban in exchange for Republican support of the “don’t ask, don’t tell” repeal.

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