Supporters say:
Among the problems with a commissions-only policy, they say, are that some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.
Supporters point to a broader range of specific charges prosecutors can file:
Current and former officials who want to preserve the option of civilian trials note that prosecutors routinely use a broad array of charges against terrorism defendants or their friends and families: obstruction of justice, false statements to investigators, passport and immigration fraud, firearms and arms trafficking offenses, and various computer and finance-related offenses.
What of this? The arguments are not frivolous. The prosecutorial resources in places like New York City's famed Southern District of New York are justly renowned. But Mirandizing senior terrorists is not a good idea. Allowing terrorists access to senior terror detainees and classified information are hurdles in any major civilian trial; prosecutors may see their case dismissed if they fail to disclose information a judge has ruled should be turned over to the defense, a tactic called "graymail" in legal parlance. Lots of minor cases may better be pursued in civilian cases--suspected low-level types with immigration violations, supporters of suspect charities, etc. These are where most of the civilian court successes are counted.
Bottom Line. Keep civilian courts for low-level stuff, but if one is going to try the real bad guys at all (rather than detain them for the duration of the conflict), then military tribunals seem a better way, so as to protect vital secrets and maximize the chance to get confessions.
Letter from the Capitol, LFTC, 9/11, National Security, Terrorism, Homeland Security, Foreign Policy, Conservative Politics
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