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Parody? No, It’s Michael Mukasey

Former Attorney General Michael Mukasey, who has dealt with terrorism trials as a judge and seen convictions successfully obtained with the full panoply of civil rights intact, thinks that U.S. civilian courts are not proper venues for terror trials.

Why? Because they’re an administrative hassle.

I kid you not.

The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil

Well, yeah, but the same is true for Mafia cases or any of the other “trial of the century” cases heard in state court houses—think serial killers or Charles Manson.

I remember the Bess Myerson trial. There were lines out the door of spectators waiting to get in. The day Mayor Koch testified, he decided to walk over from City Hall across Foley Square. I was the liaison for security that day and the NYPD came in early in the morning with bomb sniffing dogs and we had to seal the courtroom—essentially locking Judge Keenan out of his own courtroom. As the Mayor came walking across Foley Square, I was waiting at the front door of the courthouse with Romolo (Ray) Imundi, the U.S. Marshall for the district.

People on the street recognized the Mayor and began following him to see what was going on. By the time he got to the top of the steps a huge crowd was following him. It looked like the “thank you very much” production number from Scrooge.

Should Bess Myerson, Andy Capasso and Hortense Gabel have been denied the right to a public trial with their full measure of civil rights just because the notoriety created security and administrative hassles?

What about Scooter Libby? I showed up at the courthouse at 6:00 a.m. to be first on line for a spectator ticket on the day of opening statements. There were crowds and chaos and overflow courtrooms and they had to create a special extra press room and a closed circuit TV system within the courthouse. Should Scooter have been denied a full public trial with all his civil liberties intact?

Yet there is more. Judge Mukasey thinks that trying these individuals in the U.S. presents a threat of attack on U.S. soil by, wait for it, LAWYERS FILING MOTIONS!

You just can’t make this stuff up.

Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not. [emphasis, ahem, added]

Look, Sheik Omar Abdel Rahman (the “blind Sheik”) is probably the highest value detainee we have ever tried in a U.S. court and he remains a high value detainee because he continues to have organizations out there with plans in various stages of development just waiting for him to give the word to go ahead. Yet, we have successfully held him in SuperMax for how many years? And when he was transferred to Butner Prison in North Caolina, nothing terrible happened. The U.S. prison system is not the leaky sieve Judge Mukasey seems to think it is.

I won’t even go into the pretzel logic of Judge Mukasey’s Speedy Trial Act argument, it would take up a whole blogpost on its own.

The thing that bothers me most about this article though, comes near the end:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

This twisted notion that we would only observe our own laws, our own Constitution, our own Enlightenment Age ideals—if there was something in it for us, if we could somehow profit by it— appalls me.

NO, No, no, no, no. We observe our own laws, we follow our own constitution, we hew to our own Founding Father’s ideals, because it is the RIGHT THING TO DO.

We do it because that’s who we are as people. We do it because it is those ideals, manifest in our Constitution and our laws that make us who we are as a nation, that define our national character.

Judge Mukasey seems to think that if a terror attack happened again after we had displayed our adherence to the rule of law in earlier terror trials that following our own laws was a failure in the effort to manipulate the opinions and actions of others.

Doing the right thing only if it going to get you want you want, is NOT a sign of moral strength. Doing the right thing for the sake of doing the right thing, even when it will cost you dearly, IS a sign of such strength.

It is said that adversity does not make good character, it reveals it. The United States, by following our own laws and Constitution, for the SAKE of those laws and Constitution and for the sake of the Enlightenment ideals they were meant to effectuate, will reveal its national moral character. It’s taken us too long to do it, but better late than never (which, by the way, is the Cliff Notes version of my answer to his Speedy Trial argument).

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.