Joanne Mariner

Military Commissions, the Federal Courts, and the 9/11 Trial

By JOANNE MARINER


Monday, October 19, 2009

Congress is poised to enact military commissions legislation that improves upon the Bush-era model, but does not wholly remedy its flaws. Indeed, the new law—called the Military Commissions Act of 2009—does not include the full set of reforms that the Obama administration had recommended as necessary, let alone those called for by human rights and civil liberties groups.

The legislation is expected to pass soon, allowing pending military commission proceedings to resume. But as President Obama promised in May, not all of the cases presently before the commissions will remain there. Some cases will be moved to the federal civilian courts, whose track record in prosecuting terrorism is far better that of the commissions.

The most important case whose transfer is reportedly under consideration involves the alleged planners of the 9/11 attacks. Prosecuting those defendants in federal court would be a victory for justice and an enormous step forward in the fight against terrorism.

Unlike military commissions, the federal civilian courts would give the defendants a fair and credible trial—one whose verdicts would be recognized as such. Equally important, their use would send the message that terrorists are criminals rather than warriors, contradicting Al Qaeda';s grandiose and abhorrent worldview.

A Flawed and Untested System of Justice

It is hard to overestimate the importance of the coming trial to America';s reputation in the fight against terrorism. Because the trial will be closely watched both here and abroad, the choice of the appropriate forum is crucial.

Whereas a trial before a federal judge and a civilian jury would showcase the strength and legitimacy of US criminal justice institutions, a trial before a military commission would face unrelenting critical scrutiny. The continuing public debate over the commission';s substantive and procedural flaws would entangle the trial in controversy, and would risk diverting attention from the horrific crimes that are the trial';s rightful focus.

There is no doubt but that even a revised system of military commissions, with improved procedural protections, will carry the stigma of Guantanamo. The strategy of defendants'; counsel will be to challenge the legitimacy of the system and highlight its flaws. If the defendants are convicted—and especially if they are sentenced to death—the verdicts will be seen as tainted, and will be vulnerable to myriad legal challenges.

Human Rights Watch has sent observers to every one of the military commission hearings in the 9/11 case. We have seen personally how Khalid Sheikh Mohammed and other defendants revel in the chaos and confusion that have plagued these ad hoc proceedings. Even military commission judges have commented time and again on the uncertainty as to what rules apply and how they should be interpreted. Given all that is at stake, this case should not be tried in a new and untested system of justice.

"You Are Not a Soldier in Any War"

Equally important, from a policy perspective, it would be ill-advised, counterproductive, and shortsighted to use military tribunals to prosecute those responsible for terrorist acts against civilians.

Members of al Qaeda seek to be acknowledged as soldiers, rather than denigrated as criminals. They glorify their crimes as acts of war. Putting them on trial in military commissions would reinforce their narrative, not refute it, handing al Qaeda an enormous propaganda boon. In the battle of ideas that is central to the struggle against terrorism, a military trial is a win for the terrorists.

It is obvious to any observer of the military commission proceedings that Khalid Sheikh Mohammed and some of his co-defendants yearn for what they see as martyrdom. An unfair trial in a military commission, surrounded by symbols of American military power, is exactly what they want.

What they do not want is to hear is what Federal Judge William Young said to "shoe bomber" Richard Reid at the defendant';s sentencing: "You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. . . To give you that reference, to call you a soldier, gives you far too much stature."

Fair Proceedings and Legitimate Verdicts

It is long past time for the alleged planners of the September 11 attacks to be brought to justice. But these historic proceedings must be fair—and be perceived as fair—and their verdicts must be viewed as credible. They should be moved to federal civilian court, where both the proceedings and the verdicts can enjoy the legitimacy they merit.


Joanne Mariner is a lawyer with Human Rights Watch. Her columns for FindLaw are available in FindLaw's archive.

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