Due process of law vs. no law: A slim difference?

Published Dec 09 2008, 05:03 PM by Harvey Silverglate

Every time I read something about the debate over whether captured suspected terrorists should be tried in one of President Bush's "military commissions" or in a regular federal court, I have to admit smirking a bit. As a practicing criminal defense and civil liberties lawyer, with considerable experience defending clients in the federal courts, I find that neither tribunal would do justice to, well, justice.

The latest such article to bring a smile and a frown, simultaneously, to my face, is Michael Gerson's December 8th Boston Herald piece, "Due process is delicate: No ordinary suspects at Guantanamo". Gerson seems to think that President-elect Obama is going to have to untangle this problem in the aftermath of President Bush's apparent failure to do so. Gerson repeats the oft-heard mantra that "Some detainees will be too dangerous to release but too difficult to convict in a normal court."

Well, has Gerson bothered to learn much about what a "normal" federal criminal trial is like these days, and why so many defendants plead guilty rather than take their chances with the system? There's a saying that a prosecutor can convince a grand jury to indict a ham sandwich. But in federal court, a prosecutor can get not only a grand jury to indict, but even a trial jury to convict a ham sandwich of just about anything!

Why? Well, a huge variety of seemingly ordinary activities can be squeezed into the definition of some vague or broad federal criminal statute. There's mail fraud or wire fraud or lying to a federal official (not even under oath). And, if all else fails, they can resort to that old stand-by, conspiracy to violate some federal law. If the feds can't put a suspected terrorist away in a regular federal court because the evidence was procured by torture and hence would be inadmissible, they can simply question the poor bloke and then indict him for lying. No torture there - just a little bit of old-fashioned Department of Justice or FBI trickery.

It's simply beyond the comprehension of this criminal lawyer that the feds, who can indict and convict just about any of us for something, cannot figure out how to convict a suspected terrorist in a real federal court. If they can jail Martha Stewart for false statements - even though she did not commit the securities fraud about which she was questioned - they surely can imprison a "terrorist" who has done nothing wrong, or at least against whom evidence of terrorism is too compromised to be admissible in a federal court. And that's because so many real federal trials today do not produce real justice.

I'll be discussing this recent (since the mid-1980s) diminution of real justice and true due process in the federal courts in my forthcoming book, Three Felonies a Day: How the Feds Target the Innocent, being published in the third quarter of 2009 by Encounter Books. It's not a happy development. But it does make all of the talk about the difficulties of getting terrorism convictions in the federal courts somewhat irrelevant.