This NYT table-setter on several upcoming Supreme Court cases points out that conservative and liberals are coming together to condemn a criminal justice system in which all Americans are pretty much violating some law somewhere:
Notwithstanding this common ground, the gap remains when it comes to prosecuting terrorists using this same criminal justice system as opposed to problematic military commissions or worse -- indefinite detention with no charges.
“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”
In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”
There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.
“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”
Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”
The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.
Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)
The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.
Obama supporters cannot explain the logical fallacy in a policy where some accused terrorists are given jury trials in front of federal judges and others are not, while conservatives fail to adequately explain why the criminal justice system cannot handle these trials when there is a demonstrable track record showing they can.
What irks me most are knowledgeable lawyers such as John Yoo and Andy McCarthy who argue that federal judges cannot be trusted to maintain military secrets and that the judges will just fork over intelligence to the bad guys.
In light of the Classified Information Procedures Act, this argument is just specious.
A similarly annoying argument is that the accused will turn the trial into a soapbox and score some propaganda points somehow. Again, these lawyers know that this is federal court. Other than courtroom sketches and transcripts, there will be nothing to work with. Does anyone remember any big propaganda points that Moussaoui scored when he was tried in federal court?
And if they did, so what?
Again, I'm reminded of the profound words of Justice Jackson in his opening statement at Nuremberg (a unique military commission, to be sure, but one that was public and afforded the defendants an opportunity to mount a defense):
That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.Voluntarily submitting captive enemies to the judgment of law, what a concept.