American policy toward terrorism trial venues is deeply flawed. If we needed any new evidence to back this claim, it has clearly been provided in several recent cases, including Khalid Sheikh Mohammed, the suspects arrested in Kentucky and, most recently, Ahmed Abdulkadir Warsame (the Somali who spent several months imprisoned on an U.S. naval vessel).
The current, largely discretionary, approach is undoubtedly creating confusion, but what's worse, it is damaging American credibility.
Both the Obama and Bush administrations have claimed essentially unfettered discretion to decide on a case-by-case basis whether to try a particular defendant in civilian courts or military tribunals. There are several sound arguments for maintaining this flexibility: the proof of guilt may be so sensitive that our government doesn't want risk a public, civilian trial; the evidence may be more likely to be excluded in civilian courts; or our relations with third countries could be impacted by the decision.
There is, however, one argument that trumps all others: maintaining the flexibility to decide venues on a cases-by-case basis comes at too high a cost -- the government's credibility. For example, to make his case for trying Mohammed in a civilian court, Attorney General Holder has repeatedly assured people that this approach would lead to a conviction and death sentence. Such a predetermination makes the system seem highly unfair -- an impression further emphasized by the government publicly shopping for a venue where the prosecution is most likely to succeed.
More recently, to ensure the ability to interrogate Warsame without adding to the population of the prison at Guantanamo Bay, the government held the suspect in a Navy brig for two months before officially arresting him and informing him of his right to remain silent.
The government's credibility will inevitably come under scrutiny in a case where it conducts a civilian trial in the location of its choosing -- but doesn't get the death penalty, or, worse yet, even a conviction. To then put the defendant before a military commission would seriously call into question the impartiality of our system.
The Obama Administration or, better yet, Congress itself must finally step-up and develop a set of relatively bright-line principles where certain categories of defendants and crimes get tried in military court and others in civilian courts. One of the simplest ways of doing this is to look at where the suspect is caught -- if on U.S. soil, he goes to civilian court. If he's caught on the battlefield, he goes to military commission. This approach has the advantage of playing to relative strengths of FBI and other domestic law enforcement agencies in collecting evidence (both physical and testimonial) in a way that will be admissible at trial.
Another way of differentiating between terror suspects would be by nationality, whereby U.S. citizens are tried in federal civilian courts and non-U.S. citizens are tried by military commission. This would avoid the anomalous but very possible scenario where a terrorist suspect is tried and acquitted in civilian court but is nevertheless held indefinitely -- after all, a foreigner without legal status in U.S. could simply be held in immigration lockup instead of being released within the U.S.
Ultimately, however, the specific rules which govern the treatment of different categories of terror suspects matter less than simply having and following a clear set of principles.
Ideally, these principles should be established by congressional action. The Justice Department invariably, and understandably, opposes legislation that narrows its flexibility and discretion, preferring to retain the ability to deal with individuals on a case-by-case basis. In the case of terror trial venues, however, it would actually be in the Department's interest to have the matter taken out of its hands. No longer would every prosecutorial decision and jury verdict (or lack thereof) turn into a political football.
It's an understatement to say that it will not be easy to forge a consensus in Congress on the appropriate legal process for suspected terrorists. Those who oppose any roles for military commissions, or for the civilian courts, in prosecuting terrorists will likely oppose any such framework.
In the absence of Congressional action, the Justice Department must take a stand. Before more damage is done, the Department should take it upon itself to set forth firm guidelines for the treatment of these people. While officials may view it as expedient to reserve the right to make each decision on an ad hoc basis, they must put greater stock in the fact that such an approach is corrosive of systemic integrity.