Attorney General Eric Holder has received a lot of criticism from the right for his decision to try some terrorist suspects in civil courts. He has also received criticism from the left for his decision not to try all of the detainees in article III civilian courts. On doctrinal grounds, I am deeply sympathetic to the argument that the Constitution requires trials in civil courts for those who commit crimes against the United States. (See for example the posts by Professors Fred Schauer and Steve Calabresi in Politico). My question however is whether in a context in which the President and the Attorney General have virtually guaranteed a conviction, civilian courts can withstand the political pressure to provide the process that is due to the defendants.
This is an empirical question for which I don't have the answer. But I think it is worth raising especially by those who believe that a rule of law analysis requires trial by Article III courts. Can you imagine what it would be like to be the juror who votes to acquit KSM or any of the detainees? Is it possible that there is only one outcome to these cases in the civil courts? If so, would a military tribunal be more hospitable to circumstances that dicate acquittal. Again, I am not saying that civilians courts cannot do the job here. My point is simply that I'd like to see more analysis of that question.
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