The French for Terrorist Prosecution

Eric Posner, one of my colleagues over at Slate's Convictions legal blog, posits a Catch-22 for the Guantanamo Bay commissions, whereby they are illegitimate if they go forward and legitimate but ineffective if military critics stall them indefinitely.

For a variety of legal, policy and practical reasons, the commissions are fundamentally and fatally flawed. But if these are really bad guys, then we need to find some way to prosecute them.

Our French allies across the Atlantic may have found a way.  A French court yesterday sentenced seven men for aiding al-Qaeda in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there.  French prosecutors brought the case in civilian court, using a combination of open and sealed (i.e. classified) evidence to prove the defendants' guilt in a six-day trial this past March.  Now the defendants are headed for prison -- and the French get to put points on the scoreboard in the fight against terrorism.

Maybe we can learn a thing or two from Paris?

By Phillip Carter |  May 15, 2008; 10:25 AM ET  | Category:  Law
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Unfortunately, Phil, once you play "how long can you hold your breath?" with a detainee, it pretty much pooches your entire prosecution, even military law frowns on beating confessions out of people.
The question I am wondering is,
We know they physically abused the detainees, whether for information or sport is a question that will have to answered on a case by case business. We know it's illegal, several enlisted are sitting in the stockade right now for implementing the procedures approved by the White House study group. So how does one create a reality disconnect so profound that the people who ordered the abuse aren't considered at least partially responsible for the abuse? Soldiers have the right to disobey an unlawful order, they also have the right to waste away in the stockade if they claim an order was unlawful and get it wrong, the people who ordered this don't even have this defense for their actions, how is it, with all we know, these people are still walking around among us?

Posted by: dijetlo | May 16, 2008 9:31 AM

An interesting post. I think there will definitely need to be some kind of hybrid civil/military procedure. A strictly military system will not seem legitimate enough, and a strictly civil procedure just won't work, for numerous reasons, one of which is pointed out by the person above.

Posted by: DHobgood | May 16, 2008 10:34 AM

Not a bad idea, except we'll have to call them "Freedom" tribunals, because that's how we DO.

Posted by: Viva la trial! | May 16, 2008 12:31 PM

If memory serves me correctly, trying "detainees" in civilian courts was first proposed shortly after the invasion of Afghanistan (think of John Walker Lind) but was derided and castigated by the perpetrators of the invasion of Iraq and their media and Congressional enablers.

By the way, a reminder. Even though he was convicted of, essentially, conspiring to sabotage America's ability to track weapons of mass destruction -- an offense that I consider far far worse than those alleged against John Walker Lind or Jose Padilla, Scooter Libby's sentence was commuted because a President who thinks that only his friends are worthy of compassion.

Posted by: EdA | May 16, 2008 12:42 PM

The French routinely treat terrorism as a judicial matter. They have been very successful in preventing and prosecuting terrorists. I think the core reason for this is when you treat it as a legal, rather than military matter you get to claim some moral high-ground.

Posted by: jr | May 16, 2008 3:07 PM

Don't the French have a radically different legal system, the Napolenic Code? This could make a great deal of difference in the outcome of a criminal trial.

"The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries."

Posted by: lazy_george | May 16, 2008 5:14 PM

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