President Obama’s surprise announcement from Tokyo earlier today, followed up by an Attorney General presser, that the most important terrorism detainee Khalid Shiekh Mohammad, along with four others, will face trial in civilian criminal courts is a critical departure from Bush administration strategy to try such individuals before military tribunals. Mohammad, considered the mastermind of the 9/11 attacks that killed almost 3000 people, was captured in March 2003 in a surprise raid in Rawalpindi, Pakistan. In addition to 9/11 Mohammad is also believed to have played important roles in some of the most notorious plots and attacks since the mid 1990s including the 2002 Bali bombings that left 202 dead, the murder of Wall Street Journal reporter Daniel Pearl, and various airliner plots. In 2007 Mohammad, who had apparently been previously waterboarded, boasted of his involvement in 9/11 and various other terrorism incidents during proceedings before a Guantanamo Bay, Cuba Military Tribunal. Late last year he stated his desire to plead guilty, but did not officially do so.
The Legal and Political Conflict Over Detainee Trials
In the period after 9/11, an internal debate on the status of captured detainees occurred within the Bush administration with officials from the State Department and career military on one side and the Vice President and some civilian lawyers on the other.
Foreign captives arrived at a prison holding facility at a United States military base at Guantanamo Bay, Cuba starting in January, 2002. By February President Bush classified these detainees as “unlawful combatants” as opposed to prisoners of war (POWs). In June 2002 government officials maintained that the President had the power to hold these captives indefinitely without judicial review or counsel. Among the main architects of the administration’s aggressive policy stance was a young Justice Department attorney and scholar named John Yoo. Yoo’s overall position argued that the President had expansive authority to prosecute the War on Terror arising from his constitutional powers due to precedent, wartime exigencies, and the Authorization for the Use of Military Force, passed shortly after 9/11. These positions would be rejected later by the Supreme Court.
Yoo’s legal positions emboldened the administration to pursue an aggressive strategy regarding captured combatants that was eventually challenged by allies, civilian lawyers, the Supreme Court, and Congress. Among the more controversial detainee proposals presented to the administration were the implementation of limited trial rights and approval of aggressive interrogation methods provided that they did not cause lasting “psychological harm” or pain “akin to that which accompanies serious physical injury such as death or organ failure. ” Yoo, joined by Cheney Vice Presidential advisor David Addington and others, convinced the administration that it had broad authority over the interrogation, treatment, and trial of detainees. This authority, they contended did not require the assent of the other coequal branches of government or the consideration of the requirements of the Geneva Conventions.
Geneva Conventions
The Geneva Conventions are a series of treaties that establish rules for the civilized treatment of civilians and combatants during armed conflicts. Under the Constitution treaties entered into by the United States have the force of law. In 1949, various previous Geneva and Hague convention rules were revised and additions made under the title of the Geneva Conventions of 1949. These post World War II Geneva Conventions and related protocols define various categories of protected classes of people and designates how they are to be treated by signatories during periods of hostilities, irrespective of whether war is officially declared. The Conventions provide a minimal level of care for all people who come under the jurisdiction of a party in a conflict. Under Article 3, those who are no longer participants in a conflict must be cared for humanely. Criminal cases must be tried fairly before a “regularly constituted court.”
Article 3 also mandates humane treatment as well as specific rights and protections to those designated as POW. POWs are entitled to adequate housing, clothing, a reasonable diet, medical care, and the exercise of their religious faith. While in captivity, POWs need only provide pedigree information such as name, rank, and identifying serial number and are protected from coercive questioning techniques. The POW’s government is to be notified of their status and the POWs may send and receive correspondence. A humanitarian organization, such as the Red Cross, may have access to facilities. Discipline that is inhuman, brutal, or dangerous is prohibited. Torture and cruelty is also proscribed.
While POWs may be tried, Article 3 details significant requirements on the type of charges, investigative techniques, and procedural methods for trials. Generally, Article 3 requires that POWs be afforded similar treatment of the kind that is extended to military and civilian defendants who are residents of the detaining power. A baseline requirement of notice, representation by counsel, translation, access to witnesses, and appeal is mandated. In addition, charges must relate to offenses found in civilian or military statutes or violations of the laws of war.
President Bush Pushes Own Path, Disfavors Geneva
Initially, President Bush relied in part on pre-Geneva World War II era ex parte Quirin case and a similar 1942 Presidential order issued by Franklin Delano Roosevelt. In ex parte Quirin, the Supreme Court unanimously upheld the right of the President to try enemy belligerents who violate the rules of war before military tribunals. Rules of war are a code of conduct that relates to which acts of force are legal during the course of armed hostilities. The World War II era Court based its decision on the President’s authority as commander-in-chief and Congress’ prior approval of such tribunals.
The Department of Defense published an order on March 21, 2002 detailing the composition and standards for tribunals. These tribunals include juries composed of three to seven military officers. Tribunals adjudicating death penalty cases need seven jurors and unanimity to render a death penalty verdict. An automatic post trial appeal of death sentences before military reviewers was required. Non-capital verdicts would require that two thirds of the jurors to agree on guilt. The traditional guilt standard of proof beyond a reasonable doubt would be applied to these proceedings. Defendants would also be entitled to a presumption of innocence, discovery, protection against self-incrimination, access to paid military legal counsel, and protections against double jeopardy and self-incrimination. Trials would be open to the public, with certain exceptions, but could be held outside the territory of the United States. Rules of evidence would be relaxed in favor of the government and appeals to civilian courts were prohibited.
Nearly one year later, in February 2003, a draft manual “Crimes and Elements for Trials by Military Commission” proposed two dozen chargeable offenses including attacking civilians, hostage taking, hijacking, and use of poisons, along with the inclusion of other offenses found traditionally in the Articles of War. The Uniform Code of Military Justice (UCMJ) was not referenced probably due to its Article 36 requirement that military tribunals to, as much as is practicable, resemble federal court hearings. The UCMJ, enacted in 1951 created a uniform set of laws for all the branches of the American armed forces and a system of official appeals, including a civilian appellate court.
President Bush sanctioned military tribunals for six Guantanamo Bay captives in July 2003, including one who technically had dual-American citizenship. Toward the end of the year, as other detainee cases proceeded through the civilian federal court system, the Bush administration reversed its policy of denying detainees’ access to attorneys. The rights of enemy combatants under detention was the subject of three appeals accepted by the United States Supreme Court between November 2003 and February 2004. In each case, the President’s Authority under Article II of the Constitution as commander-in-chief was pitted against the right of detained persons to have the government account for such detention.
Supreme Court Weighs In
The Supreme Court’s opinion in Hamdi v. Rumsfeld, released on June 28, 2004, did not overturn the precedent of World War II era caselaw that allowed American citizens who undertake hostile acts against their country to be held as enemy combatants. Hamdi was born to foreign parents temporarily in the United States. However, the Court’s decision held, by an 8-1 vote, that contemporary detainees are entitled to both notice of the factual basis of their enemy combatant status and an opportunity to rebut the classification before a neutral decision-maker. The government’s denial of these rights, particularly within a reasonable period of time, deprived Mr. Hamdi of his constitutional guarantee of due process pursuant to the Fifth Amendment. The precise requirements or configuration of such hearings was not detailed, but the Court’s controlling opinion suggested that military hearings with lower governmental burdens may suffice. The justices were also divided as to whether Congressional approval of the AUMF was sufficient to overcome the requirements of a 1971 law prohibiting the detention of American citizens in the absence of a specific statute. A narrow plurality of five Justices maintained that the AUMF resolution extended the government’s authority to detain Hamdi. Two justices, Scalia and Stevens, maintained that no such authority existed under the AUMF. Rather they argued the government should either charge Hamdi with treason or a similar crime, or seek Congressional suspension of the Writ of Habeas Corpus for his temporary detention. Hamdi was deported to Saudi Arabia in late 2004 after renouncing his citizenship and pledging never to reenter the United States.
In two companion cases, Rasul v. Bush and Odah v. United States, also decided on June 28, 2004 the Supreme Court ruled 6-3 that non-citizen enemy combatants have a right to federal judicial review of habeas petitions. Justice Stevens, writing for the majority, maintained that neither the foreign citizenship of a detainee or the detention camp’s geographic location on leased Cuba soil prohibited a detainee from contesting his detention. The cases involved 16 citizens of Britain, Australia, and Kuwait
On December 30, 2005, the Detainee Treatment Act (DTA) was enacted. The DTA implemented revised procedures for the questioning and treatment of detainees and created procedural safeguards for Americans accused of improprieties during interrogations. The DTA also mandated various procedures for tribunals and a requirement of Congressional notification by the Pentagon regarding procedural practices. The DTA’s language, aimed at denying detainees access to federal court appeals, did not stop the Supreme Court from deciding a new case that was winding its way through the courts involving an alleged driver of Osama bin Laden.
On June 29, 2006, the United States Supreme Court delivered a major legal setback to the Bush administration when it conclusively ruled in favor of Hamdan. First, the Court held that a foreign detainee’s rights were protected by the Geneva Conventions and were enforceable through the federal courts pursuant to habeas corpus procedures. Second, the Court ruled that the President lacked the necessary Constitutional authority or specific Congressional authorization for the tribunals he created. Without specific Congressional approval, the President was obligated to follow existing law, including the UCMJ and the laws of war, which include the Geneva Convention. Restrictive evidentiary rules for the defense and Hamdan’s compulsory nonappearance on national security grounds from portions of his trial violated provisions of both these controlling authorities, thus making his trial unlawful.
Following the Hamdan ruling, comprehensive changes took place regarding the handling of foreign detainees suspected of terrorist associations. The administration asserted in July 2006 that all suspected terrorists held by the military or CIA would be handled in conformance to the requirements of the Geneva Conventions. In September 2006, the Army published a revised Army Field Manual that was governed by such standards and prohibited various practices including lengthy solitary confinements, aggressive use of dogs, and simulated drowning. On Labor Day weekend 2006, the government transported the 14 remaining foreign detainees in CIA custody from clandestine overseas sites to the United States military facility at Guantanamo Bay. Among those presented to the Defense Department for future trials was Khalid Shiekh Mohammad. The CIA had engaged in a secret operation known as “rendition” where alleged dangerous suspects were transferred, interrogated and held incommunicado by the CIA and foreign governments without regard to the Geneva Conventions.
The Military Commissions Act of 2006
As a result of the Supreme Court’s mandate that Congress approve of modifications to the tribunal process for Guantanamo detainees, intensive negotiations between legislators and the administration lasted into the fall of 2006. President Bush signed a compromise bill, the Military Commissions Act (MCA), into law on October 17, 2006. The MCA set rules and standards for military tribunals and placed restrictions on certain types of aggressive interrogation. The MCA allows the government to introduce hearsay evidence and coerced statements at trials of suspected al Qaeda detainees. It also allows the military to bar detainee defendants from trials when classified material is used. While the MCA disallows habeas appeals to federal district courts, it provides for a review of enemy combatant status by a three person board of military officials. The MCA further permits those designated as unlawful enemy combatants to be held indefinitely. The MCA states that even those who merely provide material support to a hostile enemy can be classified as an unlawful enemy combatant without any requirement of active participation in armed conflict.
After 9/11 the government prevailed in civilian criminal courts insome high profile extremist cases like that of the “Lackawanna Six” (participation in al Qaeda terror training), attempted airline “shoebomber” Richard Reid, al Qaeda member Zacarias Moussaoui, attempted terror camp organizer James Ujaama, New York City bridge bomb plotter Iyman Faris, Al Qaeda supporter Jose Padilla, and lesser figures like Jewish Defense League leader Irv Rubin, and white supremacist Matt Hale.
Conclusion
As a legal matter President Obama could very well also have tried these five detainees before military tribunals, as five others are, and is likely to face a storm of criticism for it.
His critics do have strong points in opposition. Some crucial evidence likely came about under unusual circumstances, to say the least, such as through waterboarding, classified informants or foreign sources. There may be a greater likelihood of conviction in a military trial. In addition, holding the trial in New York, blocks from the World Trade Center, poses important security concerns, as well as issues for jury selection. Lastly, a civilian trial is likely to be longer, more complicated, and scrutinized than a more shrouded military one. Lastly, could a public trial provide opportunities for grandstanding by defendants and their supporters.
The president’s supporters have arguments of their own. Federal courts have tried and convicted dangerous extremist defendants like Jose Padilla and Zacarious Moussaoui. Furthermore, at a recent Rand conference federal judges who have presided over terrorism trials forcefully contended that civilian courts are fully competent to try such cases—including ones that involve classified information. Despite his waterboarding, Khalid Shiekh Mohammad’s demeanor and statements are likely to provide prosecutors with damning evidence if they can introduce it. While prosecutors have decent, but not flawless, cases in either civilian or military courts, the President may be looking beyond the difficulties of the immediate trials. For him the ability to showcase our justice system in a case involving one of the world’s most reviled accused terrorists represents an important opportunity to define America before history and the world. That well may be one weapon we haven’t fully harnessed against al Qaeda in a parallel battle, not of bullets and bombs, but of ideals.
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