Sunday’s Washington Post published an op-ed advocating a position that we have held here at The Future of Freedom Foundation ever since the 9/11 attacks: that terrorism cases rightfully belong in federal court. The article, entitled “The Right Place to Try Terrorism Cases,” was authored by John C. Coughenour, a federal judge in Washington State. Among the many insightful points that Coughenour makes is the following:
“Detractors of the current system argue that the federal courts are ill-equipped for the unique challenges that terrorism trials pose. Such objections often begin with a false premise: that the threat of terrorism is too great to risk an ‘unsuccessful’ prosecution by adhering to procedural and evidentiary rules that could constrain prosecutors’ abilities. This assumes that convictions are the yardstick by which success is measured. Courts guarantee an independent process, not an outcome. Any tribunal purporting to do otherwise is not a court.”
Interestingly, the Post published its own editorial contradicting Coughenour’s position. The editorial called for a bizarre new judicial system designed exclusively for terrorism cases—well, not exactly for all terrorism cases—only terrorism cases involving foreign citizens.
The Post’s proposed system would work like this: The Pentagon would have the right to take any foreign citizen in the world into custody and hold him indefinitely as a suspected terrorist. However, a new federal court designed along the lines of the secret FISA court would have two powers: first, to determine whether the indefinite detention is valid or not and then later to hold a trial for the suspected terrorist.
Unlike defendants in the federal court system, suspected terrorists under the Post’s proposal would not have the benefits of the Fifth Amendment prohibition against self-incrimination. The Post’s editorial was silent as to whether any of the other procedural protections in the Bill of Rights would be relaxed as well.
Under the Post’s plan, appeals would be to some new federal court of appeals whose judges would be confirmed by the Senate but who, unlike regular federal appellate judges, would not have lifetime tenure.
Unfortunately, the Post failed to discuss the equal protection problems arising from its plan. Why should Americans suspected of terrorism be treated any differently from foreigners suspected of terrorism? Isn’t a fundamental principle of due process of law equal treatment under law? Then, why should judicial treatment turn on the citizenship of the person? Unfortunately, the Post doesn’t address such a concern.
Moreover, either courts can handle terrorism cases or they can’t. If they can’t, which is the underlying assumption of the Post’s plan, then how can they handle terrorism cases involving American citizens? Conversely, if they can handle terrorism cases for American citizens, then why can’t they handle them for foreign citizens?
There is another significant piece missing from the Post’s proposal, one that is a core element of the federal court system, thanks to the Bill of Rights: trial by jury. Under the Post’s proposal, a panel of judges will be determining the guilt or innocence of the accused rather than a jury of ordinary citizens.
Also, secrecy is a prime element in the Post’s proposed judicial system. Since the plan is modeled on the FISA court, albeit more adversarial, and since the proceedings will often involve top secret information, many of the proceedings will undoubtedly be conducted in secret. In fact, the defense lawyers will need security clearances—approved by the government of course.
The Post’s proposal seems to bear a remarkable similarity to the People’s Court tribunals that were part of the Nazi legal system. After the terrorists firebombed the Reichstag, Hitler was upset over the outcome of the trial. So, he set up an alternative legal system to deal with terrorism, treason, and other offenses.
Because trials before the People’s Court involved top-secret information, they were often conducted in secret. Defense attorneys were allowed to create the appearance of an adversarial proceeding, but usually behaved quite meekly. A panel of judges decided the guilt or innocence of the accused.
For a good idea of how the People’s Court operated, check out the great German film “Sophie Scholl: The Final Days,” which depicts the trial of Hans and Sophie Scholl and their best friend Christoph Probst, all three of whom were college students who were guilty of publishing antigovernment pamphlets. During the trial, Hans’ and Sophie’s parents tried to attend the proceedings but were barred from doing so. After all, the proceedings were secret since they involved top-secret methods of the Gestapo.
Despite faults and failures, America’s federal judicial system is among the finest in history, in large part because of the protections provided for the accused in the Bill of Rights. Judge Coughenour is right—terrorism cases belong in federal court. The American people should reject both the Pentagon’s “judicial” system at Gitmo and the Washington Post’s bizarre new proposal.
