Astonishingly, today President Obama announced that, after two false starts, we are now about to embark on our third attempt at trying terrorism suspects in military commissions--a forum that has been proven not to work at delivering justice that is either swift or fair. Today's mindboggling announcement promised that the system created by one of the last acts of the 2006 Republican congress--the Military Commissions Act (or MCA)--would be revised by Congress to add procedural safeguards before any trials moved forward.
Candidate Obama told us "[a]s President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions." The Administration has struggled today to explaining its about-face, contending that as a Senator Obama had supported alternative versions of the MCA that provided more of the procedural protections he claims he is now adding to the MCA trials. But putting this supposed fairness to one side (and more on that below), the entire concept of military trials for alleged terrorists is a disaster from the standpoint of its impact on the public perception of the United States.
Military trials are, for people living in countries with histories of military rule, redolent of their own periods of dictatorship. Whatever Americans become convinced of regarding their fairness, no one abroad will regard them as any different than President Bush's two rounds of commissions.
That loss of confidence threatens to erode the willingness of ordinary people in foreign countries to work with American law enforcement as their eyes and ears on the ground--just as the same phenomenon happens in our inner cities. It also has the potential to erode the willingness of foreign governments to work with us. Recall that Spain announced after 9/11 that it would not extradite suspects to face trials in the first set of military commissions (the ones created by President Bush in November 2001), and that other European countries have delayed extraditions while assurances were sought that the defendants would be tried in the civilian criminal justice system. Contrast the experience immediately after 9/11, where the trial of the East African embassy bombers in the federal criminal courts in 2000 built the public record necessary to convince the world that simultaneous attacks were a hallmark of Osama bin Laden's organization--and thus allowed the United States to successfully assign blame to Al Qaeda and build a coalition rapidly to intervene against them in Afghanistan. In short, the use of military trial systems threatens our national security.
There are more profound issues of perception at play as well. Recall that in the spring of 2007, when Khalid Shaikh Mohammed, the admitted mastermind of the 9/11 attacks, first had an opportunity to defend himself before a military panel (his CSRT), he expressed regret for the deaths of civilian women and children on 9/11 but said, essentially, "that's what happens in war, as you Americans well understand." Placing him before a military court for his trial plays into his desire to portray himself as a military figure engaged in a political struggle with the United States--exactly how he wants to be seen in the Muslim world--rather than as a mass murderer. Ironically, Obama met with 9/11 families just after announcing a policy that will allow their murdered loved ones to be portrayed as "collateral casualties" in a military conflict. The 9/11 planners seem likely to plead guilty in whatever forum they are tried in. The question that needs to be asked now is not whether they will be convicted, but rather what meaning the (worldwide) public will take from their convictions.
What could have provoked President Obama and his advisors to go down this road? Were technical legal concerns at work? Was it "double jeopardy" concerns--did the fact that defendants were charged and juries empanelled before the commissions mean that essentially the same charges could not be brought in domestic court? Not at all--the fact that all commissions offenses required an extra element of proof means this would never have been a problem under the "all-elements" rule. Was it a statute of limitations concern--the idea that too much time had lapsed since 9/11 for charges to be brought in ordinary criminal courts? Again, absolutely not: the limitations period in which an indictment must issue is 8 years for most transnational terrorism offenses, and we are months away from the 8-year anniversary of 9/11. (In fact several current commission defendants are also subject to standing indictments in federal court.)
In fact, President Obama's chosen path ensures that more technical obstacles are likely to arise than will be avoided. The first trial run through any new process is always fraught with missteps and delays as the parties and judges orient themselves along their new and unfamiliar trail. That means that we will see long delays as the kinks are worked out. Exactly the same thing happened with the first commissions crated by executive order during their first halting steps forward in 2005, and the mishaps increased by orders of magnitude with the MCA system from 2007-2008, even though there was much more guidance from Congress and hundreds of pages of rules and regulations were written before the process started. No matter: the only way to make a system run smoothly is to test it, which in our civilian criminal trial system has been done for two centuries. And this is not to mention the long delays that will attend Congress working out the details of the new system, as President Obama wants them to. (What a waste of legislative capital any political fight with the Republicans to ensure fairness promises to be!)
Appeals regarding the constitutionality of the new system--as with the old--will come; but unlike the Hamdan v. Rumsfeld challenge decided in the Supreme Court in 2006, federal court review of basic issues like whether the new system is constitutional (which in Hamdan happened before trial thru preemptive habeas petitions) will likely come after the military system is exhausted. So this system won't deliver swift justice on appeal either.
Retroactivity will still be a problem. Recall that under the MCA, not only the court but also the crimes were new--defined in 2006, long after the defendants were in custody. One of the oldest maxims of criminal law--the prohibition on ex post facto laws--can only be circumvented if the government can prove that the offenses spelled out in the MCA were traditionally offenses against the common law of warfare--yet in Hamdan the Supreme Court all but said that "conspiracy" (which is, together with its near relative "material support," the most frequently charged offense in the MCA system) is not a traditional common-law war crime.
Evidence from torture--the raison d'etre for the MCA system--will not be admissible, the new administration assures us. Torture was never likely to be a huge obstacle to some form of trial for genuinely significant terrorism leaders: between creative alternative charging and the use of extrinsic evidence, surely they could convict KSM of something without using his own interrogations or those of others held in the CIA detention program. KSM, for instance, admitted planning 9/11 to Al Jazeera long before he was captured and tortured. But there are two back-door routes by which torture may end up infecting the new commissions. First, the President has already announced that the new commissions will allow broader use of hearsay evidence--basically, statements that one witness reports another person said--than would be allowed in federal criminal courts. If interrogators come in to testify and claim that other, firsthand witnesses freely gave incriminating evidence against a defendant, how should the defense team prove those witnesses were in fact tortured or coerced without having them there to cross-examine? Secondly, there are issues around "clean teams"--groups of FBI interrogators who interrogate previously-tortured witnesses and ask the same questions as the torturers, without the torture. Are any new statements uninfected by the torture? It remains to be seen how skeptical the new courts--and their unknown judges--will be on this issue. In federal criminal trials, all of this dubious evidence gets excluded--as it should, based on its unreliability.
If the President's ill-advised decision ultimately becomes a reality, it will be interesting to see whether some defendants actually do better in the commission system after conviction, owing to the fact that the authorities have much more leeway in setting sentences. In the domestic system, absurdly draconian sentencing guidelines mean that in terrorism cases, very long sentences are the norm even for low-level, non-planner figures like Salim Hamdan--who got time served plus a few months after his military conviction.
Candidate Obama put it well in response to the Supreme Court's decision in our Guantanamo cases last summer: "The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values."
In sum, today was a disaster for American justice and for the hearts-and-minds aspects of the global struggle to contain terrorism--a shockingly stupid move, a betrayal of our fundamental values, and a grave setback for our national security. It belies a perspective constrained to the United States, driven by last week's polling numbers and little else in the way of long range thinking. We expect that from clowns like Ray Wolf and Newt Gingrich--whose main objection to real criminal trials seems to be, absurdly enough, that the defendants have to be brought to the mainland to face trial. But we expected better from Camelot II and its vaunted team of legal advisors. One wonders which one of the tin-eared, non-lawyer political hacks around Obama is responsible. (And that's taking the most charitable view of the people actually in charge...)