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If Military Commissions Are So Great, Why Only 3 in 8 Years?

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To hear the clamor for prosecuting Abdulmutallab, Khalid Sheikh Mohammed, and his alleged 9/11 co-conspirators by military commission, you might think commissions are better, cheaper, faster, and more appropriate than federal court trials and a sure-fire way to get stiff convictions.

The Supreme Court didn't think so when it ruled in 2006 that the Bush administration's plan for Military Commissions was unconstitutional. In 2007, the high court found Congress's legislative fix of the commissions also to be unconstitutional. After that second smack-down, Boumediene v. Bush, Congress enacted the Military Commissions Act of 2009, which has not yet been tried out. Furthermore, those convicted by military commission are entitled to appeal their convictions, and Ali Hamza al-Bahlul is doing that right now.

Of the three men tried and convicted by military commission since President Bush signed a November 2001 executive order establishing commissions, al-Bahlul is the only man to have received a sentence longer than 9 months. The other two, David Hicks and Salim Ahmed Hamdan (Osama bin Laden's driver), were sentenced to nine months and five months, respectively, after time served, and are now home with their families.

No one from either major party objected to the cost of civilian trials for shoe-bomber Richard Reid, so-called "19th hijacker" Zacarias Moussaoui, Jose Padilla, "millennium bomber" Ahmed Ressam, and nearly 200 other terrorism suspects tried in civilian court during the Bush years. It's possible that military commissions could be cheaper than civilian trials, provided you pile everything you can think of into the budget for civilian trials.

For example, in January, New York City Police Commissioner Raymond Kelly prepared a billion-dollar security budget ($200 million a year for five years) for trying five alleged 9/11 co-conspirators in federal court in lower Manhattan. Kelly's budget includes 2,000 metal barriers to restrict pedestrian and vehicle access to two apartment complexes, sharpshooters on rooftops in case of an attack by enemy snipers, police helicopters constantly in the air overhead, and canine and human assault teams patrolling the ground below.

Judge John Coughenour, who presided over the Ressam trial, was startled by those security cost estimates. He said, "There was virtually no expenditure of funds by the local police in Los Angeles regarding the Ressam trial, and the marshalls tell me that their expenses could be measured in the thousands of dollars.... The LA police department did virtually nothing to enhance security surrounding the courthouse in Los Angeles, and we had no problems regarding the trial."

The fact that federal trials are tested and universally respected as fair, with a well-established track-record for convicting terrorism suspects, has not won over people who want military commissions for several ignoble reasons, such as the desire to use the trial itself for vindication, prejudice that justifies lesser justice, including denying the presumption of innocence until proven guilty, or fear that a fair trial might not produce a conviction. Others have political motivations that require fancy footwork from time to time, as former House Speaker Newt Gingrich displayed on the Daily Show when he explained to host Jon Stewart that Richard Reid was mirandized because he is a U.S. citizen (He's actually British.), whereas the Obama administration was wrong to mirandize Abdulmatallab.

But some vocal critics of federal trials may have a darker reason for demanding military commissions. Charles Swift, Lieutenant Commander (retired) of the U.S. Navy Judge Advocate General's (JAG) Corp, named that reason when he represented Hamdan. He eventually took his client's case to the U.S. Supreme Court--and won.

"The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law.... Guantánamo and the military commissions are implements for breaking the law."

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