Making the case for criminal trials

It’s a strange time for national security politics. Right now, US forces are waging a difficult counter-insurgency war in Afghanistan and a special forces war against Taliban leaders in Pakistan, American troops are drawing down from Iraq, Chinese hackers are launching cyber attacks in the US, and Iran is increasingly belligerent on the nuclear issue. With all that, the only thing conservatives want to talk about on national security is whether terrorists should be arrested, held, and tried in the criminal civilian court system.

This should be a simple legal question. If a terrorist breaks a US law and would likely face the toughest penalty through a civilian trial, then that’s where they should be tried. If they break the law of war, they should go to a military tribunal. It’s that simple. However, the GOP’s talking points would have you believe that trying terrorists in highly capable civilian courts (that have convicted hundreds of terrorists since 9/11) is a fundamental breach of US national security.

It’s not hard to understand why this is a winning issue for GOP talking points. It’s an extension on the Guantanamo Bay debate they essentially won last year, and a recent CNN poll showed that a majority of Americans (59%) think the Christmas Day bomber should be tried in a military tribunal. Still, the public is of two minds. In the same poll, a majority said that all terrorists suspects should have their Miranda rights read (65%) and be given access to lawyers (56%). So, the public wants terrorists treated as criminals (which would mean that they should go through the civilian court system), but then wants to see them tried in military tribunals.

I take this to mean that Republican attacks on the civilian court system are breaking through, but that there’s room to make the case for swift, harsh justice against terrorists through the criminal courts. My colleagues and I at Third Way made this very case in a memo I co-authored back in November. This is the one big issue where Republicans have a clear advantage over President Obama, but there’s no reason to admit defeat – common sense on this issue can prevail if Democrats will aggressively state their case.

Image: maveric2003