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It's dangerous to try to draw parallels between procedures of the United States and any country, even those of our principal legal progenitor, England. This is surely the case with a civil-law country like France. The
problem is not that the French "don't even use a jury." In point of fact, France does use laypersons as co-fact-finders with professional judges in some felony prosecutions (as do other civil-law systems, as I write on p. 818 & n. 57
here). It's an odd complaint in any event, given that the discussion revolves around commissions that themselves will not use juries.
Perhaps more important is that what is considered a "trial" in civil-law jurisdictions is far different from the American understanding of the term (something the
New York Times reporter glossed over when she referred to a "six-day trial"). The "
procès," the French word closest to
trial, refers not only to the condensed public event that ends in conviction or acquittal but rather to the entire criminal proceeding against the defendant. In this case,
le procès lasted not for a few days in March but rather for many years: All residents of Paris' 19th arrondissement,
M. Benyettou and his six co-defendants were first arrested in 2005, and some have been detained since then. In the interim, their case no doubt worked its way through not-public proceedings before a
juge d'instruction, as is properly noted in this
post today. Only after these proceedings were completed would the public trial,
la procédure contradictoire, have taken place in robust form (see p. 838
here). Thus, even while applauding the use of the civilian system and the crafting of an evidentiary solution—aspects of the case that do deserve applause—we ought to be a bit chary of assuming that all that occurred procedurally during the long
procès deserves applause. Still more, our discussion so far seems to ignore a core problem with the French prosecution and, in my view, with many proposed Gitmo prosecutions: The substantive crime charged.
The concern remains that the material support offenses will be emulated widely and lay the foundation for a broad retreat from the traditional posture of the criminal law in this country that complicitous liability requires a mens rea of purpose, and that if a mental state of knowledge is deemed sufficient, at the very least the underlying conduct must be substantial in relation to the criminal goals of the primary parties.
The French version of this offense may be open to additional questions. Both versions deserve far greater examination than they receive when we focus, necessarily but perhaps too narrowly, on questions of procedure.
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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Eric, I don’t think you’ve correctly stated the Bazelon/Lithwick standard here: It’s not that all Pentagon balking is per se evidence of crap commissions. It’s that the balking, plus the seven years of after-the-fact tinkering (the CSRT “do-overs” or the Bush-appointed Court of Military Commission Review), plus the international condemnation, plus the choose-your-own-ending playbook are evidence of crap commissions. Your characterization of our argument as “so long as the insiders balk, the commissions must be flawed” overstates the point. Our point was that when even the insiders start to revolt, it’s hard to ignore what everyone else has known all along.
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Eric, we're fast approaching the end of my French vocabulary, and I really don't want to resort to using Google's translator to keep up with this conversation. But I think you're misapplying the Catch-22 standard to the French sentencing decision announced yesterday. It is true that the French court relied on some classified evidence to reach its verdict. But this was not la justice à huis clos, or justice behind closed doors. The French system, like ours, provides for the use of classified material. The material was fully disclosed to the parties involved—prosecutors, defense attorneys, and the finder of fact (in this case, French judges). The court subsequently reached a verdict, relying in part on that secret evidence.
Although the public may never see the actual classified evidence produced in the case, I think the public may trust the verdict because of its faith in the court as an institution, and the public faith in the court's mechanisms for managing classified information in the interests of justice. Compare and contrast this with the military commissions at Gitmo—where we have no faith in the institution, no faith in its procedural mechanisms, and very little confidence that it will handle classified material in a way that furthers justice.
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Eric, I think Joseph Heller would agree with the Catch-22 scenario you've described for the commissions at Guantanamo Bay. They truly are damned if they proceed and damned if they don't. Perhaps unintentionally, I think you've arrived at the right conclusion: The commissions are fundamentally and fatally flawed; the rule of law will prevail only if they are perpetually blocked. Specific evidence against defendants is irrelevant to the question of the tribunals' legitimacy, although I'd also argue that this evidence makes it all the more important that we find some way to try the men held at Gitmo.
Ironically, our French allies across the Atlantic might have found a way. A French court sentenced seven men to prison yesterday for aiding al-Qaida in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there. French prosecutors brought this 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 our colleagues in Paris?
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