What Is a Trial?: President Bush Asks Congress to Authorize Military Commissions

By SHERRY F. COLB

Wednesday, Sep. 20, 2006

Two weeks ago, President Bush acknowledged that that the CIA had secretly been detaining fourteen men accused of playing significant roles in planning and carrying out acts of terrorism against Americans, including the attacks of September 11.

The President announced that these men would be moving to the detention facility in Guantanamo Bay, Cuba. In addition, Bush urged Congress to authorize trials of the fourteen men by military commission, on charges of war crimes. Significantly, however, the trials for which Bush sought authorization would dispense with a number of the guarantees that ordinarily accompany criminal trials in U.S. courts. These include the right of a defendant to suppress confessions obtained through coercion, to exclude hearsay (out-of-court statements offered for their truth), and to examine all of the evidence offered in support of the government's accusations.

A number of key Senate Republicans appear poised to rebuff White House pleas.

The Case For, and Against, Limited Trial Rights for a Subset of Terrorism Suspects

Those who defend legislation that would provide a very limited trial right argue that a war crimes hearing is properly different from an ordinary criminal proceeding. For one thing, concerns about retaliation and further violence - if defendants themselves have access to all evidence against them - make some ordinary guarantees potentially dangerous and distinctly so, in this context.

Furthermore, people captured after acts of war against civilians arguably occupy a status quite dissimilar to that of an ordinary criminal defendant. Criminals transgress the norms of a state or a country. War criminals, by contrast, arguably threaten the moral foundations of the entire globe. The nation's security might demand a level of secrecy that could make it virtually impossible to convict a defendant in the ordinary way. Yet retribution may be no less (and perhaps more) important in such cases.

Opponents of more limited trial rights respond that if a defendant cannot view the evidence assembled against him, and if he cannot exclude statements that he made under coercion or mistreatment approximating torture, then it is no longer meaningful to refer to the proceeding at which the government seeks a conviction as a "trial."

They say, as well, that no matter what the cost - in retribution, safety, or the avoidance of future violence from a detainee toward witnesses against him - we must never punish a person with death or prison without the rudimentary guarantees associated with a conventional trial.

Why Do We Have Trials?

It is difficult to imagine that either side in this dispute will persuade the other of the error of its ways. Each camp speaks with great certitude about justice, freedom, and security, and each believes that to make the wrong choice could be disastrous.

Though some of the debate is specific to "war crimes" trials in the era after Nuremberg, the debate also raises the more general question of why we have trials at all. To answer this question is at least to begin to determine whether a proposed procedure should qualify as a trial at all and what features of the modern trial most fundamentally implicate the interests that such a proceeding exists to guard.

One answer to the question of why we have trials is simple: to separate the guilty from the innocent. For many, this is the most important objective of a criminal trial, and it is accordingly a great loss when a guilty person is judged innocent, just as it is a great loss when an innocent person is judged guilty. In our criminal justice system, of course, we consider the former error far more tolerable than the latter. Expressing this sentiment, English jurist William Blackstone famously said, "Better that ten guilty persons escape than that one innocent suffer." To serve this priority, we demand that the prosecution prove its case "beyond a reasonable doubt" before a jury may return a guilty verdict.

We might accordingly modify the singular goal of "separating the guilty from the innocent" and say instead that two primary purposes animate the criminal trial: first, to ensure, to the extent possible, that no one who is innocent of a crime is convicted and punished; and second, to provide, consistent with the first purpose, that guilty people are convicted and punished for their crimes.

Determining the truth about guilt and innocence, however, is not the sole purpose of a trial. The trial is also a public performance, an opportunity for the community to witness and absorb a morality tale about crime and punishment and thereby to learn the values of the society. The values on display include the important role that evidence and rational inferences play in driving determinations of guilt and the seriousness of the offenses that find their way into the courtroom (as not every law on the books enjoys regular enforcement).

A criminal trial also showcases extrinsic values that do not necessarily enhance the accuracy of jury fact-finding. These include the right against unreasonable searches and seizures, the right against abusive interrogations, and the right to an attorney's loyalty and silence on confidences. Though controversial lessons for many, the public trial teaches us about values that can trump the pursuit of the truth in judging whether or not a defendant committed the crime of which he or she stands accused.

Last but not least, a trial teaches those inside and outside of the courtroom that society places a great value on procedure. This means that even when it is clear from the outset that a defendant is guilty, we nonetheless provide him with a trial and accord him the same rights and protections that he would have if the truth of the allegations against him were less clear. Procedure commits us to behaving in a manner that we believe appropriate to a sincere search for truth (tempered by the other values mentioned above) even when the facts before us in a particular case appear not to warrant such an inquiry.

The Hard Cases

When affording a defendant all of the ordinary guarantees seems likely to yield a substantively just verdict, doing so will strike most people as acceptable. Yes, a particular defendant's guilt may seem obvious, but it cannot hurt to ask a prosecutor to present her case in a professional way, relying on evidence that a defendant can examine and that results from constitutionally valid police work.

But when guilt seems obvious yet difficult to prove without resort to impermissible evidence (perhaps obtained by force, resting on hearsay, or too sensitive for a defendant to examine directly), the tension between the various goals of the criminal trial makes it impossible to serve one objective of trials without simultaneously sacrificing another.

Under such circumstances, people are likely to debate the question of what the "essence" of a trial is.

The Ingredients of An Answer

One approach is to suggest that in a particular category of cases, such as war crimes of unlawful combatants (including members of Al Qaeda), we are dealing with something out-of-the-ordinary and should therefore tolerate fewer procedural safeguards than we usually do.

Moreover, if we require full-dress trials, soldiers might well be tempted simply to kill unlawful enemy combatants rather than risk having them released under a set of safeguards designed for very different circumstances. Viewed as an alternative to summary execution, the military commission approach might appear positively enlightened.

Yet a person accused of being an unlawful enemy combatant might not only be innocent of war crimes but might in fact turn out not to be an enemy combatant at all.

As in the criminal justice system, investigations sometimes turn up the wrong people, and most would agree that we ought to strive to keep to a minimum the number of individuals wrongly convicted of war crimes. This is especially true given the symbolic significance of such verdicts as statements of unambiguous and complete moral condemnation.

To pose the question differently, though hardly to answer it, we might inquire as follows:

First, is it better for ten terrorists to go free than for one innocent person to be wrongly punished for acts of terror for which he bears no responsibility?

Second, is it better for ten terrorists to be allowed to remain silent than for one innocent person to be tortured for information that he does not have?

And third, is it better for ten terrorists to access information that places the country's security in jeopardy than for one innocent defendant who has committed no harm to be blocked from viewing (and thus from effectively disputing) the evidence that the government has assembled against him?

Determining your own answers to these questions will go a long way to deciding how you might have responded to President Bush's plea to Congress if you were a member of that august body.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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