Civilian Trials for Terrorists Highlight Differences Between Presidents

For Obama, 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.
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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.

Legal and Political Conflict Over Detainee Trial

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.


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.”

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.

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.

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

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.

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.


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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