"How to Try a Terrorist" by Judge Coughenour
Federal district court Judge John C. Coughenour has an op-ed in today's New York Times where he express concern regarding Attorney General nominee Michael Mukasey's view of the judiciary’s role in prosecuting the war on terror.
It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy. . . .
Judge Mukasey raises a legitimate concern about whether open judicial proceedings may compromise intelligence gathering. But courts are equipped to meet this challenge. The Classified Information Procedures Act provides a set of rules for criminal cases. They include the appointment of a court security officer to oversee protocol for classified information. The law also states that only people with security clearance may have access to classified information, and only as needed for their jobs.
Certainly this system cannot entirely prevent any misuse of information; the mere fact of an arrest may tell a story we’d rather our enemies not hear. But our system provides a sensible way to protect national security while maintaining some degree of transparency.
If confirmed, Judge Mukasey will join Michael Chertoff as another esteemed former jurist in the executive branch facing the formidable task of keeping our nation safe from terrorism. The distinction between the roles of judge and law enforcement officer should not be lost in the transition. Our courts ensure an independent process; they do not enforce the prerogatives of law enforcement. Any proposal that would blur this distinction would compromise a bedrock principle of government that has defined this country from its inception. This is a price too high to pay.