Departing from Peace-time Standards – the Prosecutors’ Perspectives

Among several fascinating themes in Farer and Kris Boon dialogue has been the detention and trial of accused terrorists.  Governments that feel besieged frequently depart from peace-time standards.  Their lawyers and diplomats try to justify the departures.  And some arguments are better than others.  But rarely does the public have the opportunity to weigh in on whether to depart from peace-time standards of justice.  This fall, we have that chance. 

In a Wall Street Journal op-ed last summer Michael Mukasey opened a discussion about whether to establish special-purpose national security courts to try those accused of terrorism-related offenses.  Although he hedged, Mukasey appeared to endorse proposals that Congress create new courts.  These terror courts would offer lower evidentiary standards, fewer obligations to reveal exculpatory evidence, and possibly a lower burden of proof for convictions.  Since then, teams on both coasts have been working to develop – or defeat – these proposals. 

What we have not done adequately, however, is to determine the need such a tribunal.  Despite having presided over the trial of José Padilla, Mukasey says the federal district courts are incapable of trying those accused of terrorist acts.  The positions of proponents and opponents fall mostly along party lines.  Conservatives favor some form of special-purpose tribunal to the unprecedented challenges.  Progressives play down the novelty of the al Qaeda threat.  But what do experienced professionals think?  In this case, this means prosecutors with relevant experience. 

On Monday, the New York City Bar will host a discussion to illuminate this question.  What has been the experience of trying accused terrorists in federal district courts?  Former US Attorney Mary Jo White will weigh in, based on her successful experience trying those who bombed the World Trade Center in 1993.  Ms. White will be joined by three of her former AUSA’s.  Andy McCarthy, secured a conviction of the so-called ‘Blind Sheik’ for seditious conspiracy.   Mukasey’s op-ed cites McCarthy’s proposal favorably.  Two other former AUSA’s – Jim Benjamin and Rich Zabel – have recently completed a comprehensive survey of terrorism-related trials.  Based on this research, they will argue that federal courts have done a great job.  Former US Attorney General Benjamin Civiletti will moderate this timely discussion. 

Both major presidential candidates have promised to close down the detention facility at Guantanamo.  This means that we will see more trials.   Derogation is not a dry academic issue.  And the argument should not come down to whether one is a ‘realist’ or a ‘liberal internationalist.  Rational discourse based on real-life experience should inform the decision.  Monday’s discussion promises to inform the debate with the experience and judgment of those who have served on the front lines.  For more information, feel free to contact me at MarkRShulman@gmail.com.