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The Corner

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Do We Want the Casey Anthony Jury on Terrorist Trials?



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Or the O.J. Simpson jury? Or any of the other capricious juries from high-profile trials with talented legal teams?

For civilian trials, which result from real police work in peaceful America, the jury system is the best system we’ve got, regardless of individual (though notorious) anomalies. But given the choice between civilian juries and military commissions for captured terrorists, why choose the civilian jury?

The Obama administration has elected to try a Somali terror suspect in civilian court. The suspect, captured by American forces overseas, was interrogated for two months onboard a Navy ship, without Miranda warnings. This, of course, was the right thing to do. The last thing you want is to tell a suspected terrorist captured in his area of operations that he has right to remain silent.

But how will a jury react to this prolonged interrogation? What will they think of the nicely cleaned-up young man sitting in front of them as high-powered defense lawyers rail against the conditions of his confinement? What will they make of the evidence produced, not by a police investigation, but by military intelligence-gathering?

Troops in the field do not “work crime scenes”; they battle insurgents. Interrogators aren’t “building cases”; they’re seeking actionable intelligence. Rarely can investigators revisit the scene of the crime and interview witnesses. A war zone is a terrible place for conventional police work. Will civilian jurors, who may not even understand the contemporary military experience, be able to grasp these distinctions? Perhaps. Perhaps not.

The service members who sit on military commissions understand the challenge of wartime evidence-gathering, and the purposes and goals of the interrogation process. They have training in the laws of armed conflict and the kind of background knowledge it would take civilians years to accumulate. Yet we’re depriving these commissions of jurisdiction. To what end? Who are we impressing? Certainly not the terrorists. The Harvard faculty lounge and Davos will give the obligatory golf clap, then go right back to waging lawfare and demanding our total, abject withdrawal from Iraq and Afghanistan. The Obama administration is risking much for little gain.



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