\u00a0Those New York Trials: Par for the Terrorist Course<\/p>\n
\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It is astonishing how, since the last election, the party out of power has claimed with utter assurance and zero accuracy that various Administration actions or policies are radical departures from the way things always were.\u00a0 For example, we often heard from the right during the Sotomayor confirmation process that the view that judges are supposed to make law was some dangerous liberal innovation, though every first-year law student knows judge-made law is a legitimate and critical aspect of jurisprudence.\u00a0 The most recent eruption of such nonsense: After Attorney General Holder announced plans to try five 9\/11 plotters in U.S. District Court in New York City<\/a>, we heard repeatedly that it was odd, if not downright perverse, to apply ordinary American criminal justice in such a case.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The stance of Sen. Judd Gregg <\/a>of New Hampshire was typical: \u201cThese people are evil people.\u00a0 They represent a cause which wants to destroy this nation. If they have the opportunity and were to get free, they would try to destroy this country.\u00a0 There\u2019s no reason we should have them in the criminal justice system.\u201d\u00a0 Military commissions are held up as some kind of norm from which the choice of criminal courts is some strange deviation.\u00a0 \u201cWe\u2019re reaching out to give terrorists a benefit that is unnecessary,\u201d said Rudy Giuliani<\/a>.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Uh, not really, notwithstanding that Holder himself claimed he had a choice.\u00a0 We have practically no history of using military commissions against civilians.\u00a0 The Supreme Court in Ex Parte Milligan (1866)<\/a><\/em> held that under the U.S. constitutional order civilians cannot be tried in the United States by military commissions while Article III courts are open and available.\u00a0 And the technicality that these defendants were in Guantanamo, not in the United States, would not disturb the applicability of the U.S. constitutional order, not since Boumediene v. Bush (2008)<\/a><\/em>.\u00a0 So it\u2019s not clear at all that civilians can even be constitutionally tried by commission.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes, uniformed combatants against us can be tried by military commission \u2013 for war crimes.\u00a0 But these particular defendants are specifically 9\/11 conspirators.\u00a0 They are not uniformed military, and what they are being called to account for is not a war crime.\u00a0<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It is all very well for us to speak of a war on terror, but there has been no state of war, constitutionally speaking, with al Quaeda<\/em>.\u00a0 Call the armed conflicts following our invasions of Iraq and Afghanistan wars if you like, though technically I would disagree.\u00a0 But the struggle with this stateless organization does not rise to that level.\u00a0 As explained in earlier columns, even if we set aside the Constitution\u2019s view of war as something only Congress can initiate<\/a>, and then only by a formal declaration, war has still traditionally meant the clash of sovereign nations through duly constituted armed forces<\/a>.\u00a0 The label of war is momentous, and has momentous consequences, which is why the Framers tried to keep that label reserved for very particular circumstances.\u00a0 There was no war waged on 9\/11.\u00a0 It was momentous; it was terrible.\u00a0 But it was terrorism, not war.\u00a0 There is no al Quaeda nation or army.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And, even if the name of war had fit, it would ill become the nation which obliterated Hiroshima to speak of attacks on this nation\u2019s cities or transportation, carried out in the course of such a war, as war crimes.\u00a0 We have no moral standing to make that charge.\u00a0 And it might not fit if we tried.\u00a0 It arguably accords with the laws of war to ditch airliners in the sides of enemy buildings, because killing enemy personnel (even in many cases civilian personnel) and destroying their economic infrastructure is permitted to combatants.\u00a0 So it is far from clear that, even if the 9\/11 attacks had been carried out by uniformed military, these would have been war crimes.\u00a0 It is, however, beyond doubt a violation of U.S. and New York State criminal law for civilians to attack skyscrapers with airplanes.\u00a0 Good old-fashioned civilian criminal charges like conspiracy and murder fit beautifully, especially when the perpetrators are civilians.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And we have a long history of trying civilian terrorists, including Islamic fundamentalists, as civilian defendants.\u00a0 That includes terrorists who engage in paramilitary training, like Randy Weaver and his Aryan Nation separatists, al-Quaeda terrorists like Omar Abdel Rahman, Islamic lone wolf terrorists like Richard Reid, and mass murderer terrorists like Timothy McVeigh.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In other words, we do not ordinarily regard facing Article III justice as some privilege too precious and dignified to be accorded to civilian defendants charged with terrorism.\u00a0 And we almost never resort to military commissions for that purpose.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes, we do expose ourselves to certain things with civilian trials.\u00a0 Listening to the criticisms, one hears recurring themes:<\/p>\n \u00a0\u2022\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u201cThis will give them a forum to attack the U.S., attack the West, attack torture, make the government a defendant.\u201d\u00a0 It is entirely to be expected that the defendants will try these things.\u00a0 Most judges give such efforts very little scope.\u00a0 Frankly, however, if some of that talk is permitted, I would expect most of it to ring quite hollow (the torture part excepted).\u00a0 Somehow, our system has survived over two centuries of defendants being free to try to make the government a defendant.\u00a0 I don\u2019t notice too many people thinking the worse of the government because of such attempts.<\/p>\n \u00a0\u2022\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u201cIt will make martyrs of them.\u201d\u00a0 No more so than military commissions; arguably less.<\/p>\n