Trial by Confusion

The first thought, of course, is that Senator Lindsay Graham and his colleagues who have signed on to his bill are secretly terrorist sympathizers. That would explain the inexplicable. They have let it be known that they want terrorists tried in military commissions where the procedures are less clear than in civilian courts and where the history of convictions is far more favorable for the terrorists.

To date there have been 3 terrorists tried in the military tribunals and of the three, two are now free men and one is a permanent resident in a federal prison. By contrast, as we learn from New York University’s Terrorism Trial Report Card: “In 2001/2002, 8% of defendants labeled as terrorists in the media were charged [in civilian courts] under terrorism statutes, and of those 38% were convicted of terrorism. In 2006/2007, those numbers increased to 47% charged and 84% convicted. The overall conviction rate for prosecutions involving terrorism charges now stands at 89%.”

In her introduction to the Report Card, Karen Greenberg, executive director of the Center on Law and Security and editor in chief of the Report Card, observes about civilian courts that: “An increasing percentage of convictions involve the more serious charges, and a growing percentage of those accused of terrorism are convicted.”

The report card observes that “Federal prosecution has demonstrably become a powerful tool in many hundreds of cases, not only for incapacitating terrorists but also for intelligence gathering. Much of the government’s knowledge of terrorist groups has come from testimony and evidence produced in grand jury investigations. . . and in the resulting trials.”

Such statistics would cause less ambitious men to conclude that civilian trials were a good way of dealing with terrorists. Senators Graham and especially Senator McCain are not less ambitious men. Indeed, one of them hoped to be president and having failed at that, with his colleagues wants to take control of the Justice Department by using the power of the purse. Dictating in what forum and geographical location trials of are to be conducted is a creative way of removing from the attorney general the power to make decisions that are universally acknowledged to be his and his alone.

Of course the fact is, Mr. Graham and his colleagues are not on the terrorists’ side. Mr. Graham explains his bill by starting out, as many people do when attacking something, by proclaiming their “great respect” for whatever it is they are attacking. In introducing his bill to take control of the criminal justice system he says: “I have great respect for our civilian legal system. However, I believe that the 9/11 co-conspirators should be tried under the law of armed conflict in a military tribunal setting.” He explained his rationale in his weekly remarks provided by the Republican National Committee. He begins by saying that the decision to prosecute the mastermind of 9/11 in civilian court makes no sense to him and “most Americans” notwithstanding its 89% conviction rate. He does not explain who “most” comprise.

Flying in the face of conventional wisdom and airborne by his own elocution, he states that “Civilian trials create confusion”, an astonishing assertion give their 89% success rate. He proves his point by pointing out that the Christmas Day bomber was read his rights within one hour of questioning and as a result, asked to see a lawyer. (In that respect the Christmas day bomber was somewhat less well treated than Richard Reid, the shoe bomber who was arrested during George Bush’s tenure. Mr. Reid was read his Miranda rights within 5 minutes after his arrest and three more times within the next 48 hours.) The Reid case moved through the civilian justice system and Mr. Reid is now serving a sentence of life in prison handed down by a civilian judge.

Attorney General Eric Holder and Defense Secretary Robert Gates have reacted with alarm to the idea that Congress can begin controlling prosecutorial decisions by withholding funds for particular activities it finds not to its liking. They have written House Speaker Nancy Pelosi and Minority Leader John Boehner stating that the “exercise of prosecutorial discretion has always been and should remain an Executive branch function . . . . [W]e have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes.”

Those charged as terrorists will probably welcome the prospect of a prolonged dispute between Congress and the executive branch as to where and by whom they will be tried. If health care reform is an indication of how such disputes play out, there is a good chance that before the issue is resolved, a court will have freed the defendants because they have been deprived of the right to a speedy trial. Then a new round of finger pointing can begin. That, rather than legislating, is what this Congress does best.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at


Christopher Brauchli can be e-mailed at For political commentary see his web page at