Un Petit Instant, SVP

Am enjoying today’s discussion of U.S. military commissions. But I fear the jumping-off point for the discussion, an endorsement of France’s prosecution of Farid Benyettou et al . , rests on shaky ground.

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’$2 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 sole count of conviction in the French case was  «association de malfaiteurs en relation avec une entreprise terroriste» , “association with evildoers in relation to a terrorist enterprise.” Its rough U.S. equivalent is the material-support -of-terrorism offense signed into law by President Bill Clinton, used in U.S. civilian courts, and reprised in the Gitmo commissions. In 2005  Norman Abrams , Emeritus Professor of Law and former Acting Chancellor at UCLA,  argued persuasively regarding the substantive infirmity of the U.S. offense , concluding (Page 35):

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.