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March 15, 2010

Why Horse-Trading on the Terror Trials is a Bad Idea
Posted by David Shorr

Is it just me, or does it seem really bizarre to be considering backpedaling on counterterror policy at the same time that it's having notable success in finding, killing, or capturing terrorists (oh, and also getting credit for it in the polls)? Here's my real question: do progressive poliitical figures realize how a shift to military commissions would undercut progressives' ability to present an alternative to tough-talking conservatives? I see an astounding disconnect between the way that "going to the dark side" was so discredited just a few years ago, and yet somehow its arguments still carry so much weight in the current debate.

Why am I so exercised about this? Well, let's look at what was said on the Sunday shows on the subject:

Well, obviously there are a series of things that have to weigh. You are right, the original decision was to try him in New York. Local authorities were receptive there at the beginning, they changed their view on that. That has to influence our thinking. The question becomes what are their -- what possible venues would there be? And is it worth reviewing the entire decision? The attorney general said at the beginning, when he announced those -- the venue and the trial in Article 3 courts that Khalid Sheikh Mohammed, under the protocols that he and the Department of Defense had developed, could have been tried in either a military commission or an Article 3 court. So we have a range of options.

White House Senior Advisor David Axelrod on CNN’s “State of the Union”

It's not just about KSM coming back into military court, it was a major misstep to put him in civilian court in NY, it made no sense. We need laws on the books that will allow terrorist detainees to be held without trial, give them due process, treat them as prisoners, not common criminals.

Sen. Lindsey Graham (R-South Carolina) on ABC’s “This Week”

When I put these two together, what I come up with is that reversing the civilian trial decision would be a big fat, "what were we thinking?" What progressives really should be saying is "we refuse to let our justice system be terrorized." What a shameful spectacle for such a strong republic -- a two-centuries old system of government by law -- to go to such lengths and give a bunch of gruesome glory-seekers special treatment. Should we really be pulling these guys (and gals too, we know now) out of the shadows in which they hide and then give them a venue all their own? We've got this totally backwards; this is a chance for the United States to show the contrast between the majesty of justice being done and despicable sadists with the delusion that they can remake the world by murdering innocents.

Supposedly, a lot of this horse-trading is focused on a deal to close the Gitmo detention facility. Again, does this really make sense, to remove a symbol of misguided US efforts to work outside the bounds of law at the price of another fear-driven end run? If Senator Graham believes Gitmo should be closed, then there shouldn't be a need to trade for it.

While we're at it, since when is every defendant or prisoner in our justice system a common criminal? Is this a flaw that we're just noticing? Do we need a new system to deal with mass murderers? And this is the real point, the military commissions have a troubled history and virtually no track record of success in prosecuting terrorists. It really is ridiculous that a court system that has proven its ability to prosecute terrorists, including handling sensitive evidence, should be discussed so skeptically. It should be the other way around.

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There is wide-spread agreement that horse trading in the political arena is immoral and undesirable, and should be illegal. But what is the actual position of law on this?

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