Cantor's Faulty Terror Trial Arguments in Politico Posted by Adam Blickstein

Rep. Eric Cantor and the GOP are waging a war on America's legal system and the constitution. Their tools of attack are lies, bellicose rhetoric, and putting politics ahead of national security. But as hard as they try, reality and the facts continue to rebuke them.  Case in point, while arguing that terrorists should not be tried in American courts--something President Bush successfully did nearly 200 times--Rep. Cantor makes the following argument in Politico:

A clever defense lawyer will be ethically bound to take advantage of strong legal precedent from the Second Circuit under a doctrine called “Outrageous Government Conduct.” In the Second Circuit, a court finding of outrageous conduct by the government – after the arrest of a defendant – can lead to the outright dismissal of the charges. In this nightmare scenario, the defendant is freed and the case is over. Why would a lawyer think he could win that legal motion in these cases?

...It would be naive to assume that aggressive lawyers, backed by liberal support groups, won’t argue that a higher principal warrants dismissal based on alleged torture and abusive conduct. According to government documents made public by the administration, 9/11 mastermind Khalid Sheikh Mohamed was waterboarded 183 times. Certainly an argument of Outrageous Government Conduct will be made and the Second Circuit is the only circuit court that has adopted this dramatic remedy of acquittal. In light of this, one has to wonder why the attorney general and president were almost boastful in their prediction of easy victory in court. Was this a sign of confidence or legal naivety?

Cantor uses this rationale, that torture-based Outrageous Government Conduct might set Khalid Sheikh Mohammed free (something that would be entirely prevented by other national security imperatives) to support his claim that military commissions are the only option available to prevent KSM from falling prey to such legal gamesmanship. But it is Cantor that is naive and simply failed to do his homework. 

Last year during military commission proceedings, charges were dropped against Mohammed al-Qahtani because Susan Crawford, the top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial, deemed he was tortured and therefore she could not refer the case for prosecution, the same thing Cantor claims would be impossible in a military court:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent...You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford used the same rational in a military commission that Cantor cites would set KSM free in a civilian court. There is no question that Cantor is wrong, that military commissions are not some sacrosanct panacea to the potential problems we may face while trying to prosecute terrorists in civilian courts. The same motion he describes could be (and in Qahtani's case was) filed in a military commission and there is no reason to assume that a military commission panel will treat it any differently than a criminal court.

In fact, it may be easier for such roadblocks to be overcome in civilian courts since there is far more precedent and structure in our judicial system than there is in the extremely flimsy and rarely used military commission system. And in a previous terror trial, a Federal judge actually denied the same motion Cantor flails his arms about. 

Even though there were clear indications he was tortured, Jose Padilla was in the end convicted in a civilian court. And this is after the Bush administration failed to prosecute him in a military commission years after being held as an enemy combatant.The judge in the case explicitly rejected the same premise Cantor says would let terrorists flee prosecution:

A federal judge refused to dismiss terrorism charges against Jose Padilla over claims that the alleged Al Qaeda operative was tortured in U.S. military custody, removing one of the last major obstacles to the start of his trial next week.

U.S. District Judge Marcia Cooke stressed in a 12-page order filed late Monday that she was not passing judgment on the torture allegations. Rather, she said the effort to dismiss the case for "outrageous government conduct" was faulty on legal grounds.

Padilla's lawyers claim that during the 3 1/2 years Padilla was held as an "enemy combatant" at a Navy brig he was routinely subjected to harsh treatment and

Faulty on legal grounds. Just like Cantor's and the GOP's attacks on civilian trials and the judicial system are faulty on the grounds of reality.

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