Georgetown Fellow, Law and Security
Proponents of trying individuals in military commissions are all but declaring victory after the Obama administration cleared the way for new cases to be brought in the Guantanamo war crimes tribunals. Marc Thiessen speculates that the case of Ahmed Ghailani-the first Guantanamo detainee to be tried in federal civilian courts who was today sentenced to life in prison-correctly convinced the Obama administration that military commissions are the only viable option for prosecuting Guantanamo detainees. Andrew McCarthy opines that President Obama has decided that he must "deal with reality" and accept the fact that newly-established congressional restrictions on the transfer of Guantanamo detainees will make civilian trials in federal court impractical. Meanwhile, Robert Chesney, who-unlike Theissen and McCarthy-generally supports civilian trials for terrorism suspects, now argues that military commissions really are not that bad, and that civil liberties advocates' insistence on civilian trials for all terrorism suspects is misplaced.
So it would seem, based on these perspectives, that the Obama administration's decision to bring new cases in the military commissions simply reflects an underlying reality that military commissions are the best venue to try terrorism suspects. Nothing could be further from the truth. Since the terrorist attacks on 9/11, federal courts have convicted more that 400 individuals of terrorism-related crimes, with a conviction rate of over 90%. In that same time period, military commissions, suffering from one setback after another, have only convicted five, two of whom are free today. Moreover, because most simple acts of terrorism are not war crimes, convictions of many Guantanamo detainees in military commissions may be overturned when appellate courts consider jurisdictional objections. By contrast, federal prosecutors have all sorts of anti-terrorism statutes available to convict individuals of terrorism-related offenses without worrying about similar legal challenges. Questions of law aside, military commissions, with their inextricable ties to the Guantanamo project and subpar procedural safeguards, only serve to undermine national security by alienating allies and providing al Qaeda and like-minded organizations with a potent recruiting tool.
Despite the overwhelming evidence to the contrary, Thiessen and McCarthy nonetheless insist federal courts can't handle international terrorism cases, pointing to the Ghailani case as an example. But if anything, the Ghailani case only showcases the strengths of the American justice system. Ghailani received what was widely-perceived as a fair trial in which he was able to thoroughly challenge the government's assertions that he played an integral role in the East African Embassy bombings. At one point, evidence obtained by torture was properly excluded by the judge presiding over the case-a development that should have been lauded by all who support a criminal justice system based on the rule of law. Instead, commentators such as Theissen and McCarthy decried the judge's ruling and insisted the case should have been tried in a military commission so that Ghailani would have no chance of being set free. That seems an especially odd argument to take seriously today-the day on which Ghailani was issued a life sentence for his crime.
Given the overwhelming success of civilian terrorism trials compared to their military commissions counterparts, it is disappointing that the Obama administration intends to go forward with new cases in the fundamentally flawed military commissions. But the Obama administration should also take this opportunity to make a renewed effort to try Guantanamo detainees in federal courts, which remains its preferred venue for trying terrorism suspects. Although Congress has placed some restrictions on the President's ability to transfer Guantanamo detainees to federal courts for trial, the President still has the ability to move forward with cases if he has the political will to do so. Along similar lines, the President should take concrete steps to more forcefully oppose any further congressional efforts to restrict his authority to transfer detainees out of Guantanamo. President Obama remains committed to closing Guantanamo, and if he is serious about this commitment, he must take immediate steps to ensure that prosecutions of Guantanamo detainees move forward in tried and true federal courts.