The Corner

Re: Mukasey in the Crosshairs

The security problems Jonah and JPod allude to are very real and much overlooked.  Those who’ve participated in the process do not like to talk about them and are appropriately discouraged from doing so — the goal of terrorism being to terrorize, it is a satisfaction that we should not give the enemy.  I discuss this and other practical problems, in this paper (on why we need a National Security Court), including the following observation (footnote 9 beginning on p. 6) about the terror trials of the 1990s, which netted less than three dozen terrorists in eight years: 

Most of the trials … took many months to complete (e.g., the blind sheik case took nine months, the embassy bombing and the first WTC trial took seven months), often at the conclusion of, literally, years of pretrial discovery and court proceedings. Typically, the appeals also take years to complete. (E.g., the embassy bombing trial, completed over six years ago, is still on direct appeal, no doubt with years of habeas challenges ahead assuming the convictions are upheld.) Moreover, even assuming arguendo, and against all indications, that there were appreciably more than three dozen terrorists (a) who could practically have been captured and rendered to the U.S. for trial; (b) as to whom evidence existed that could have been used without irresponsibly compromising national security; and (c) as to whom such evidence would have been sufficient to satisfy the demanding proof hurdles for prosecution; there would of course remain the problem of securing courthouses, jail facilities, and trial participants throughout the United States.

By the way, I am more confident than ever in the need for a National Security Court to deal with terrorism cases:  a truly awful New York Times editorial about Judge Mukasey today refers to it as a “truly awful idea.”

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