Once Weren’t Warriors

I suspect that Kelly Anne Moore and I wouldn’t see exactly eye-to-eye on every issue. . . I mean, I don’t really know, I don’t know her, but. . . Ms. Moore served as chief of the Violent Crimes and Terrorism Section in the Brooklyn US attorney’s office from 2002 to 2006, and that term of service has me wondering if she came in with Bush appointee Roslyn Mauskopf, the USA for that Brooklyn office. Mauskopf was a protégé of former New York Governor George Pataki and a favorite of former New York Senator Al D’Amato who was viewed as unqualified for her post when her nomination was put forward back in 2002. Her current case against the “JFK bomb plot” “suspects” does nothing to convince me otherwise. Mauskopf is one of those US attorneys that Paul Krugman warned us about a while back—you know, one of the ones that weren’t fired by AG AG and his band of partisan White House brothers.

But I digress. . . .

Kelly Anne Moore, who worked under Mauskopf, has penned an Op-Ed in today’s New York Times that—whatever our other differences may or may not be—basically says what I’ve been saying for what is fast approaching six years: treat suspected terrorists as criminals, and try them in US criminal court.

The United States does not need a new and untested detention system for terrorists. The existing federal system has a proven track record of dealing with complex prosecutions.

Moore has personal experience, successfully prosecuting two Yemeni’s in 2005 for funneling money to Al Qaeda and Hamas, and seeing them put away for a long, long time. She argues that this case was as complex as any of those that might arise from a criminal prosecution of those detained at Guantanamo Bay, and gives plenty of examples. Moore also gives examples of other terrorist cases that have been successfully prosecuted in US courts, such as Ramzi Yousef, organizer of the 1993 WTC bombing.

Moore’s Times piece also explains the way in which many of the purported problems with prosecution in open court need not be the insurmountable roadblocks that the Bush/Cheney Administration make them out to be. But what interested and provoked me most of all was this paragraph:

Those who commit terrorist acts should be tried as the criminals they are, instead of the “warriors” they claim to be. If the Guantánamo detainees were prosecuted in federal courts instead of being designated as “combatants,” most by now would be serving prison time as convicted terrorists, instead of being celebrated as victims or freedom fighters.

To the first sentence, I say, right on! I have been arguing for as long as I remember that you don’t make “war on terror,” you investigate and prosecute people and organizations responsible for terrorist acts. By trying alleged terrorists in open court, you not only get to show the world what a bunch of crooks and creeps the suspects are, you get to demonstrate that America is a nation of principles and laws, unafraid to confront its enemies on a level playing field.

But notice that I said “alleged terrorists.” This is where I see a little daylight between Kelly Anne Moore and myself. You see, while Moore assumes that most of the Guantanamo detainees would be convicted as terrorists, I have serious doubts.

I don’t think I am going out on a limb to say that many still imprisoned at Camp Delta (we’re still calling it that, right?) likely never did much of anything you or I would call “terrorist.” At their very worst, many were soldiers of a sort, fighting for a disorganized alliance of pro-Taliban or anti-American forces. That would make them prisoners of war, and not detainees, or even criminals.

But others in detention were likely not even that. There are plenty of stories of afghani warlords rounding up prisoners for pay. Then there are the cases of political or tribal retribution, or flat out mistaken identities. And what of those that were just kidnapped by the US or its surrogates?

Whether there is enough evidence to convict any detainees such as those is an open question—and that still ignores the elephant in the room. One of the main reasons—I am certain—that the administration now resists trying these detainees in open court is because if they did, it would become more than obvious that these people were tortured. Moore does not really acknowledge this “roadblock” to openness in her Op-Ed.

Indeed, the former prosecutor is quick to hold up the recent conviction of Jose Padilla—as have many others—as an example of how a potential terrorist was convicted in federal court. However, while Moore mentions that Padilla was denied access to legal counsel for over three years while in military detention, she fails to point out that the jury that convicted Padilla never learned that fact.

Nor was Padilla’s jury allowed to hear that he was initially picked up on completely different grounds—he was supposed to be the “dirty bomber,” after all—but when the government couldn’t come up with enough evidence on that count, they quickly built a case around completely different activities for an entirely separate charge.

Most legal experts report that it was not surprising that Jose Padilla was convicted, given what the jury was allowed to know—implying or stating outright that had these other facts been present in the courtroom, a different outcome was at least a possibility.

Moore, while rightfully taking the Bush/Cheney Administration to task for this glaring failure in its “war on terror,” still seems to assume that most of those taken prisoner by the administration are terrorists. I cannot be so certain.

Still, I am certain that in the end, Moore gets it right:

Many people around the world have come to question America’s commitment to the rule of law. There are few places in the world where that principle is more hallowed than in the United States federal courts. The best course of action now, in dealing with terrorism suspects, is to use these courts — the keystone of American jurisprudence — and show the world that America can protect itself while it respects the rule of law.

I would add to her course of action that the US should also close Guantanamo, restore Habeas rights, and recommit to handling prisoners as detailed in the Geneva Conventions, but if we were to begin with hearings in open court, for all detainees, I have some faith that rest would follow.

If Kelly Anne Moore and I can agree on that—and I suspect that we can—then she and I can join forces to fight the real enemies of freedom.