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Friday, April 16, 2010

A reasonable -- and therefore politically impossible -- position on how to investigate and try alleged terrorists

I know that my post's title has a "dog-bites-man" blandness, but, in the context of our hyper-ventilated politics, it is downright weird to come across an analysis of the investigation and trial of suspected terrorists as calmly nuanced as today's post by Rick Pildes and David Golove over at Baliknization. The essence of their reasonability is their recognition that "[n]either the developed legal framework for dealing with crime or war is adequate for responding to terrorism": As they observe, "[i]nsisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another." Pildes and Golove make several sensible suggestions for melding the War and Criminal Trial models, noting (for instance) that (a) Congress ought not to tie the President's hands in deciding what sort of adjudication to use, because such fetters will destroy the President's power to negotiate over terrorism suspects' extradition with foreign governments and (b) Congress might usefully create a two-stage system of interrogation and trial under which alleged terrorists are subjected to a "brief period of non-coercive military or intelligence interrogation before being turned over to law enforcement and the ordinary criminal process including Miranda warnings."

Rather than summarize the post further, I'd urge readers to take a look and then answer this single question: What are the odds that anything like their sensible approach will be adopted in the debates over KSM's trial and the larger issue of trying suspected terrorists? Will any member of Congress today, Left or Right, make the sort of concessions to rationality that Pildes and Golove offer - in particular, conceding that the problem requires some mix of military and civil justice laced with a healthy dollop of Presidential discretion? Or would any such concession dilute the "wedge" politics of the terrorism issue unacceptable to the respective parties' political operatives and the nurseries of infantile, squalling blogocrats, talk radio jockeys, and "cause" activists -- from the Daily Kos to the Drudge Report -- to which those operatives minister?

Posted by Rick Hills on April 16, 2010 at 10:08 AM in Criminal Law | Permalink


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in a word, NO.

Posted by: rich | Apr 16, 2010 12:53:56 PM

Rick -- I agree that David & Rick's analysis is thoughtful and nuanced, and I, for one, have been arguing for awhile that the absolutism at both partisan extremes is incredibly counterproductive to finding a useful solution to the current problem.

One point where you and I may differ, though: The debate over whether to try individuals in civilian court or a military commission is not _just_ a policy debate. There are important constitutional limits on the jurisdiction of military commissions, and although folks may disagree on what those limits _are_, I think we can all agree that Congress may not transgress those limits. Thus, _no_ solution to the current problem can include the trial by military commission of offenders or offenses that cannot constitutionally be assigned to such courts. (Congress couldn't provide for the trial of civilians for shoplifting in a military commission, right?)

So this is not entirely a policy debate; and to whatever extent constitutional limits on military jurisdiction are somewhat unclear, they still matter--quite a lot, IMHO--and are the source of significant, ongoing litigation.

Posted by: Steve Vladeck | Apr 16, 2010 11:26:07 AM

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