Convictions: Slate's blog on legal issues

No Faith in the Last 228 Years?

In seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.

Ye of Little Faith

Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).

On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?

On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it. 

More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.

What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.

A Federal Case?

I think Judge Gertner's right -- there are some things which flatly shouldn't be a federal case. 

I'm reminded here of the so-called "felon in possession" cases I saw while working as an extern in the U.S. Attorney's Office in Los Angeles.  Under federal criminal law, it's a crime for a previously-convicted felon to possess a gun which has moved in interstate commerce (i.e. any gun). The cases I watched came as part of a massive Justice Department initiative called "Project Safe Neighborhoods" which aimed to reduce gun-related crime in America through various means, including the federal prosecution of persons arrested with a gun who had a prior felony conviction.  Many were initially arrested by local law enforcement; some were even tried first in state corut.  However, they eventually made it into federal court because the feds wanted to take advantage of stiffer federal sentencing laws, more prosecutorial resources at the federal level, and the comparitive advantage of the federal court jury pool versus that in Los Angeles County. 

The strategy has worked.  PSN has locked up a lot of gun-carrying felons for a very long time.  In general, I applaud that outcome, because I want streets that are free of gun violence too.  But, I agree with Judge Gertner that we should be concerned about the larger implications here, especially the stark differences between the federal and state criminal systems which create the incentive to make a federal case out of everything.

Prosecutorial Discretion: Transparency and Federalism

On April 18, the L.A. Times reported the United States Attorney was facing criticism from line prosecutors who said that they were being pressured to file "relatively insignificant criminal cases" for the purpose of driving up statistics that would lead to increased federal funding. The United States Attorney denied the accusation.

Whatever the facts, the question of how prosecutors exercise their considerable discretion to bring federal charges is critical. With mandatary minimum sentencing, prosecutorial decisions effectively determine the outcome. Federal substantive criminal law is chaotic -- with overlapping offense categories that can apply to the same charged conduct, some with mandatory minimums and some without. And those decisions, unlike the decisions of judges that are regularly reviewed and criticized, are not transparent; they are the classic low visibility decisions, accountable for the most part only to the hierarchy within the local office and no further. Given that power, and lack of transparency, every effort must be made to keep the process from becoming politicized either to beef up statistics -- the allegation here -- or to go after political enemies --as was claimed in connection with the U.S. attorney firings.

Justice Scalia said it best dissenting in Morrison v. Olson, the case in which the Supreme Court upheld the independent counsel statute, the statute that later allowed Ken Starr to investigate President Clinton. "Law enforcement", he noted, "is not blind." No one can investigate everything, so the prosecutor has to pick his cases. And if he can choose his cases, he can choose his defendants, the "most dangerous power" of all. The risk is that the prosecutor will go after the people he thinks he should get, not the cases that need to be prosecuted. The "who" before the "what"."

But another, perhaps even more important issue, is whether federal court is the appropriate place for the "relatively insignificant criminal" cases. There is certainly an important role for federal law enforcement. But, this effort must be done carefully. If not, it will only deepen the perceived inequities in the criminal justice system, inequities that lead one person to get a long federal sentence, while another is prosecuted in state court facing a lesser penalty for the same conduct, while one person faces a federal jury which may well be far less diverse than the state juries, etc. Moreover, too much reliance on federal prosecutions can undermine over the long haul the critical role of local law enforcement, which has the best intelligence and the closest ties to the community. And federal resources, as a colleague on my court has noted, are often best saved for more complex cases.

So whatever the facts in this case -- and we only know the accusations -- federal prosecution decisions are simply too important to the public, to the defendants, to be subject to in appropriate, external pressures.