Civilian Courts Give Terrorists Far Too Many Loopholes

Earlier this month, a career thief and murderer who was sentenced to death in 1984 for the rape, torture and murder of Denver bookkeeper Lorraine Martelli died in the Colorado State Penitentiary--of natural causes. His last rounds of appeal still were pending. Frank Rodriguez was a lifelong street predator who savagely attacked a decent, hard-working person and whose case was otherwise unextraordinary. His case stands as sadly representative of a civilian criminal justice system that simply is not appropriate for adjudication of terrorist war crimes.

It is into the breach of that system that Atty. Gen. John Ashcroft now rides with a proposed death sentence for Zacarias Moussaoui, the alleged 20th hijacker of Sept. 11. Moussaoui’s case has been relegated to U.S. District Court, along with various accused bank robbers and drug kingpins, despite Defense Secretary Donald H. Rumsfeld’s recent issuance of complete procedural rules for war crime trials before military commissions.

Can’t the Bush administration get its Justice and Defense departments right on this issue?

No compelling reason has emerged for not charging Moussaoui and alleged shoe bomber Richard Reid as war criminals. Both are accused of targeting civilians for mass murder, which constitute war crimes under international law and should be tried before military commissions. The same goes for Ahmad Omar Saeed Sheikh, the alleged Al Qaeda terrorist charged in Pakistan with masterminding the killing of Wall Street Journal reporter Daniel Pearl; for all those alleged Al Qaeda agents on the FBI’s “Most Wanted Terrorists” list; and for the Al Qaeda detainees at the U.S. naval base in Guantanamo Bay, Cuba.

Those who have argued against military tribunals have said that these commissions cannot be fair. That argument falters with the procedural rules, which provide for presumption of innocence, defendant right to private counsel, beyond-a-reasonable-doubt burden of proof, defense right to review the evidence, preclusion of double jeopardy, public trial except where necessary to protect national security or intelligence assets or witnesses, unanimity required for a death sentence and a 30-day appeal process. In one concession to the reality of terrorism prosecution and to the aims of efficiency and truth, the rules provide for a relaxed standard of evidence compared with the civilian system.

In the civilian criminal justice system, we as a society find acceptable the risk that the guilty may go free as a consequence of providing extensive procedural safeguards to the accused. With terrorist war crimes, the risk isn’t that a serial killer or a rapist may go free to prey upon future victims, but that the killer who goes free will later detonate a “suitcase” nuclear weapon in mid-Manhattan or L.A.

We don’t want a process in which decades pass while mass murderers of civilians cool their heels, contemplate their opportunities and percolate their hate in U.S. jails. Consider Sheikh. He was released when his cronies took hostages on an Air India airliner in 1999 to force Indian authorities, who’d been holding him in connection with the kidnapping of an American, to free him. Sheikh recently boasted that he’ll be released again the same way.

The swiftness and certainty of the military commission process reflect a policy choice to err in favor of eliciting the truth and prosecuting the guilty in a fundamentally fair tribunal, rather than freeing the guilty to attain an absolute ideal of procedural fairness. Since mass slaughter and economic devastation are national security issues, national security in time of war mandates military trials.

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Spencer J. Crona is a lawyer and Neal A. Richardson is a deputy district attorney, both in Denver.