Criminal Prosecutions and Another Kind of Precedent
Friday saw the former Attorney General, John Ashcroft, who helped orchestrate placing the supposed “worst of the worst” at Guantanamo, repeat the same two arguments others have made against federal trials of terrorism suspects: they pose a risk of revealing key intelligence and they increase the risk of another terrorism attack. The first argument has little traction in light of past experience in prosecuting terror trials, prosecutorial discretion in presenting evidence, and judicial administration of the trial. The trial of Ahmed Khalfan Ghailani is instructive. An increased risk of attack has also been repeated as an argument against terrorist detentions in the United States. How would detaining or prosecuting terrorism suspects in the United States somehow increase the terror threat? Is there any evidence of this? Is the alternative to keep the detainees in Guantanamo, with the hope that terrorist groups might ignore the fact that they are detained by the United States? Such a claim seems wildly implausible. To the extent that U.S. detention practices are widely known, there seems to be no reason to think that detentions and prosecutions at Guantanamo versus detentions in Illinois, for example, alter the risk that terrorists would target the U.S. If the overall desire and capabilities of terrorists to strike U.S. targets would not change merely because of the location of detentions or prosecutions, perhaps it would alter the targeting of a potential attack. This form of NIMBYism seems based on a highly speculative premise (and a dubious moral claim). No doubt, fear is easily manipulated to motivate officials into avoiding even a speculative, and at best marginal, increased risk of attack. But this kind of fear-mongering fails to present a good reason not to prosecute terrorist suspects in U.S. courts.
If the arguments lack merit, why the orchestrated effort to repeat them?