Departing from Peace-time Standards – the Prosecutors’ Perspectives

by Mark R. Shulman

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 [at] gmail [dot] com.

One Response

  1. I look forward to the debate.  Andy McCarthy has been a shill for national security courts for some time as have been a number of people on this blog over the past few years – Ken Anderson, Benjamin Wittes, Stephen Vladeck and Bobby Chesney – just to name names.  I have a piece over at Northwestern Law Journal’s Colloquy that categorically rejects the idea.  The point of all this national security court nonsense is to create a tribunal d’exception and with that permit the preservation of the policy of cruelty (Alberto Mora’s words) that is in place and will continue to be in place by those who want to treat these foreigners in a third class manner.  That is it.  And for some of you who tut-tut my words I would encourage you to read Judge Robertson’s memorandum opinion on the Hamdan case of July 18, 2008 where he carefully cites us to Chambers v/ Florida and abuse of young negro men in Florida in 1950 trials to get confessions.  Yup, that national security court comes right out of that evil history.  Do not fool yourselves into thinking that it comes from some nobler vintage.  You carry that blood on this idea.  Even if it is happening to foreigners.  The title of my piece is “No third class processes for foreigners” and it is available at

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