Last updated at 4:00 PM on Wednesday, February 1, 2010

On November 13, 2009, Attorney General Eric Holder announced the Department of Justice will pursue prosecution in civilian federal court of Khalid Sheikh Mohammed and four other Guantanamo detainees previously charged before military commissions with conspiring to commit the 9/11 attacks. In addition, Attorney General Holder stated that five other Guantanamo detainees will stand trial before military commissions. In this installment of Originally Speaking, the participants will consider the legal and policy dimensions of Attorney General Holder's decisions.

Questions and Answers:

Gabor Rona: Military Commissions: Illegal Friendly Fire

One thing several proponents and opponents of military commissions agree on is the Administration's failure to articulate a principled basis for distinguishing the cases that go to military commissions from those that go to federal court. This leaves an unfortunate but probably accurate impression: 'if we think we can convict in a real (federal) court, we will. If not, we'll use a military commission.' This in turn, is strong evidence that even the Administration understands military commissions to be a form of second class justice, inappropriate for Americans, but good enough for aliens – separate and unequal. It is a system that purports to try combatants (alias, belligerents) who might be neither, for crimes that may not be crimes under procedures that are not worthy of that name.

A measure of how much faith we really have in the cherished values that define and distinguish America is the degree of provocation under which we would abandon them. Are we so insecure – is the thought of KSM in Manhattan so existential a threat – that it justifies abandoning the principle of equal justice?

"Foul!" you say. "There is no cherished value of federal trials for enemy combatants. In fact, there is well-settled precedent for military tribunals."

Well, not exactly. During the Civil War, the Supreme Court in Ex Parte Milligan rejected the use of military commissions while ordinary courts are functioning and capable of exercising jurisdiction. The U.S. Army's then laws-of-war code, the Lieber Code commissioned by President Lincoln, held that suspension of criminal law was only valid "as far as military necessity requires this suspension…." The Lieber Code was a template for the Geneva Conventions.

When then-Attorney General Speed, ignoring the Milligan ruling, used military commissions for prosecutions in connection with Lincoln's assassination, there was notable opposition. Lincoln's previous Attorney General, Edward Bates, for example, called it "unlawful" and a "gross blunder." Commenting much later on one of the civilians tried in the case, the Army Board for Correction of Military Records in 1992 noted that the military commissions had lacked jurisdiction. The Supreme Court did not review the case.

The WWII case against the German saboteurs who snuck into the United States under civilian guise to commit acts of war, Ex Parte Quirin, is widely regarded as a shameful chapter in U.S. jurisprudence. The Supreme Court heard the case even though lower courts had yet to review it. After only a day of discussion, the Court made an initial ruling, which allowed the commissions to proceed. Some three months later the full legal opinion was issued, long after the men had been executed.

Quite apart from these sordid aspects of Quirin, there is little justification for using the case as precedent to prosecute 9/11 suspects in military commissions. As per Milligan, U.S. criminal courts are fully capable of exercising jurisdiction.

U.S. law, for example, provides stiff sentences for terrorism stiff crimes. According to a study conducted by former federal prosecutors in 2009, federal courts have convicted 195 individuals in connection with international terrorism charges since 9/11/2001, either by verdict or by a guilty plea, using procedures that successfully protect U.S. national security. The conviction rate of over 90% in terrorism cases is commensurate with convictions for all crimes in federal court. By contrast, and nearly eight years into the life of Guantanamo detention, with some 800 detainees having entered its gates, Military Commissions have completed three cases, only one of which was truly contested.

With friends like military commissions, who needs enemies?

Kyndra Rotunda: The prior debater casually waves away Supreme Court precedent articulated in Ex parte Quirin on grounds that it is "widely regarded as a shameful chapter in U.S. precedent." But, what is important is not what the one subjectively thinks of this Supreme Court case, but rather, how the Supreme Court has treated the Quirin and Milligan cases.

Truth be told, Justice O'Conner's concurring opinion in Hamdi v. Rumsfeld, made clear that Quirin is the law today, and it stands for the principle that the U.S. may bring enemy combatants to trial before Military Commissions. (In fact, one of the defendants in the Quirin case was actually a U.S. citizen. This fact made no difference to the Supreme Court.) What mattered to the Court is that the defendants had been behind enemy lines and then crossed those lines to fight for the other side. This, the Court said, meant that he could be lawfully tried by Military Commission.

One cannot focus on Milligan, and pooh-pooh Quirin, because of the untidy fact that Quirinclarified (and narrowed) its holding in Milligan. Some commentators argue that Milliganprohibits civilians from ever being tried before Military Commissions, so long as civilian courts are open. But, the Supreme Court in Ex parte Quirin made clear that if the defendant is an enemy belligerent (including a U.S. citizen) he or she can be tried before Military Commissions even when civilian courts are open. That is, whether civilian courts are open is not a dispositive test. In every case where the defendant had been behind enemy lines and then fought the United States, the courts have allowed military commissions.

I also disagree with the proposition that the Geneva Conventions' requirement that detainees be tried by "a regularly constituted court" means that we must haul enemy combatants to the U.S. for civilian trial. Again, I rely on the Supreme Court. In Hamdan v. Rumsfeld, the Supreme Court considered whether Military Commissions were lawful. While it found that the President's Executive Order calling for Military Commissions required specific endorsement from Congress (something not required by Quirin), it invited Congress to endorse Military Commissions, and it found nothing unconstitutional about Military Commissions. It certainly did not say, or even suggest, that enemy combatants are entitled to Article III trials. Congress responded by statute creating the present military commissions.

I agree whole-heartedly that President Obama's decision to bring some detainees to trial by Military Commission, while bring others to trial in Article III Courts is unprincipled. Why are some entitled to greater procedural protections, while others are not? The President has proclaimed that those cases where the U.S. has sufficient evidence to convict will come before U.S. Courts; while those cases without sufficient evidence will come before Military Commissions. Selecting a forum based on which one is most likely to convict the defendant is about as un-principled a test as one could imagine and cuts squarely against President Obama's stated purpose of proving that America follows the rule of law. Does it? Really?

Andrew C. McCarthy: The United States has held millions of prisoners during the wars of our history. It has never been the law – much less been a cherished American value – that alien enemy combatants are entitled to systematic access to our courts, let alone to full-blown trials in our civilian justice system for their war crimes. To suggest otherwise, Gabor has no choice but to ignore binding precedent (Ex Parte Quirin) and to posit that that Milligan – a case involving a civil war fought entirely within our territory between American citizens – is somehow the template for the treatment of alien enemy combatants in a war Congress has authorized against a hostile foreign terrorist organization. To borrow his phrase: Well, not exactly.

Gabor also finds significant the fact that the Lieber Code, Lincoln's protocol for departing from civilian justice only when "military necessity" requires, is the precursor of the Geneva Conventions. The invocation of Geneva by those who would betray the Conventions' imperative of civilizing warfare is baffling. Geneva is an incentive system, rewarding combatants for conducting themselves honorably. By contrast, Gabor would reward the most atrocious combatants, those who mass-murder civilians, with better rights than any combatants have ever enjoyed and somehow call it "the Golden Rule." (Never in the U.S. or anyplace else has "Do unto others" meant pretending that alien enemy operatives were domestic criminal defendants.)

The fact is that, for all their Geneva rhetoric, Gabor's side of this debate has never really wanted the Geneva Conventions. They want airbrushed Geneva – the same way they want airbrushed precedent. In multiple provisions, Geneva makes clear that disputes about the applicability of the Conventions' various provisions are to be worked out diplomatically. If we really had Geneva, we wouldn't be in court. It was never conceived of that individual persons – even those drawn from a transnational terrorist organization that is not and could not be a Geneva signatory – could cherry pick Convention provisions and enforce them in the courts of a signatory state during wartime (and, in the case of the U.S., enforce them in the people's courts against the executive branch while it is conducting a war overwhelmingly authorized by the people's representatives in Congress). Had such a radical construction been made explicit, the Geneva Conventions would never have been ratified.

The refusal of the United States to ratify the Conventions' Protocol I (1977) demonstrates this. The admirable thing about Protocol 1 is its direct approach: an attempt by the international Left, in the light of day, to enact inflated protections for terrorists by straightforward constitutional means. Not surprisingly, it didn't work. So now, those dissatisfied with this political result are enacting Protocol I, and worse, by judicial stealth. This is an illegitimate exercise. Just as Gabor would ignore Quirin, I would ignore Boumediene andHamdan. The courts have no business dictating the conduct of war to the political branches which, unlike the courts, are the constitutional actors responsible for our national defense.

David D. Cole: Trying KSM and his co-defendants for the 9/11 attacks in a civilian criminal court is not legally required, but absolutely the right decision as a policy matter. As a legal matter, when an individual not entitled to privileged belligerent status targets civilians as an act of war, a nation has a choice. It may try the individual as a criminal, in a civilian court, or as a war criminal, in a military court. The fact that the law provides these alternatives no more offends the rule of law than does the fact that an immigrant drug dealer can often be tried in state court for violating state drug laws, in federal criminal court for violating federal drug laws, or deported for violating the immigration laws. It is hardly novel that anti-social conduct violates more than one set of legal norms, and when it does, the state often will have a choice as to how to try the alleged perpetrator.

Ex parte Milligan may be best understood, as Prof. Rotunda suggests, as a bar on trying civilians, that is, non-belligerents, in military courts as long as civilian courts are open. Milligan was accused of conspiring to support the Confederacy, but was not alleged to be a Confederate soldier. Had he actually joined the Confederacy's Army, he would almost certainly have been triable in a military commission. And all the Geneva Conventions require is a trial in a "regularly constituted court," not a regularly constituted civilian court.

So President Obama could have tried KSM in a military commission. Some of his critics argue that he should have done so, and that trying him in civilian court will be extremely difficult and dangerous. But to try KSM in a military commission would not have avoided any of the difficulties that a civilian trial will present, with one exception.

Critics complain that a civilian trial, with its presumption of a public trial, its requirement that defendants be permitted to confront their accusers, and its greater procedural protections, will endanger confidential information and risk acquittal. But any fair military trial would also have had to be largely public, and would never have been accepted as fair unless it afforded the defendants a meaningful opportunity to defend themselves. This is especially so given the likelihood that the U.S. will seek the death penalty, which necessarily requires special adherence to fair procedures.

Critics argue that a public trial may turn into a propaganda platform for al Qaeda, by focusing on the way the U.S. treated KSM while he was held in a CIA secret prison (and waterboarded, by the CIA's own count, 183 times). But again, any fair trial would have had to confront the implications of our own wrongdoing, and any verdict that failed to do so would be fatally tainted. Our own criminal torture of KSM does not mean that he cannot be tried; it merely means that he cannot be tried using any information obtained through torture, or through leads therefrom.

The real propaganda victory for al Qaeda would have been had we tried KSM in a military commission. Those courts, while not inherently flawed, have been so tainted by the Bush administration's initial establishment of them as little more than kangaroo courts, that any trial conducted therein will bear a huge presumption of invalidity. And as important as it is to bring KSM to justice, it is just as important that we do so in a way that the world (especially the Islamic world) will see as fair, above-board, and legitimate. The way we defeat al Qaeda in the long run is by isolating them from their potential sources of support, and we achieve that only by taking the high road.

I do fear that trying KSM in New York will create much greater security risks than might have been presented by a military trial at Guantanamo. But that problem is the Bush administration's doing, not the Obama administration's. Had Bush not used Guantanamo as a law-free zone, asserting the right to detain people there indefinitely, without a hearing, without even saying who was detained there, beyond the scope of legal protections, and subject to torture and other brutal mistreatment, Guantanamo would not have become the international embarrassment that it is today. The Bush administration itself recognized that Guantanamo was doing us more harm than good, and that it should be closed. There will undoubtedly be greater security risks in a trial in New York – but our former president squandered the opportunity to conduct the trial in a much safer place by making that place the symbol of American lawlessness.

George J. Terwilliger: According to long-standing US Department of Justice policy, criminal cases are to be brought when doing so secures an important federal interest. Justice Department policy also favors the consideration of alternatives to federal prosecution in determining whether the federal action is necessary or appropriate. A principal rationale for this policy is that the total demands for federal prosecution far outstrip the resources available. Thus, prosecutors must exercise their discretion carefully in deciding which cases merit the use of restricted resources and consider alternative means to best secure the federal interests in a given case or cases of a common nature.

The core federal interest in the government's counter-terrorism program ("CT") is the prevention of attacks on US persons and facilities. There are key tasks associated with this objective, several of which are or can be affected by the decision to prosecute Khalid Sheikh Mohammed ("KSM") in a civilian criminal proceeding. Among these key tasks are the neutralization of the capabilities of individual terror operatives and groups. There are numerous means to accomplish this task. Incapacitating individuals' capabilities can be accomplished by long-term or lifetime incarceration (so long as an individual's means to communicate with the outside world are either eliminated or extremely tightly controlled), by killing those operatives where there is legal justification under accepted laws of warfare to do so, and by obtaining the means to monitor their activity so as to enable acting when it is strategically advantageous or tactically necessary to do so.

Trying KSM in a criminal prosecution in New York is not the most effective means to advance core CT objectives and is not consistent with venerable principles governing the exercise of prosecutorial discretion.

One of the most important means to accomplish CT objectives is the acquisition of information that permits US authorities to penetrate and neutralize terror operations. This is not easily accomplished. Years of intelligence and law-enforcement experience with dismantling and neutralizing international outlaw organizations has proven time and again that obtaining access to the communications, finances and operational capabilities of such groups is an arduous, time-consuming and sometimes very dangerous undertaking. Thus, how that information is obtained must necessarily be jealously guarded, judiciously revealed and not compromised prematurely or unnecessarily.

Considering the paramount counter-terrorism objectives which should govern the exercise of prosecutorial discretion, one must question the decision to try KSM in New York. Unusual, unanticipated or outlier cases can justify deviation from normal prosecution policy, especially where a prosecution may be the exclusive or best means to secure vital federal interests. Such cases merit federal attention. But this is not one of those. Indeed, when one poses the core question of why this case is being brought, in New York of all places, no convincing answer has been tendered, and one is not apparent.

In order to protect the sources and methods by which the information vital to successful counter-terrorism operations is obtained, the logical choice for adjudicating the responsibility of those involved in terror attacks on America is that which does the most to protect vital information while also providing such due process of law as is necessary, but no more than that. For me, that choice clearly would not be a criminal prosecution in civilian court.

The rules governing civilian criminal proceedings simply provide far too expansive avenues for criminal defendants to discover and examine the information in government files. Those rules also set too high a threshold for the admission of evidence to be appropriate for use where information is collected everywhere from the battlefield to the scene of domestic attacks and by a wide variety of domestic and international sources, the latter using their own laws as a guide to proper procedure. While those rules may be appropriate for trying a bank robber or a drug dealer, we should not be volunteering to expose our counter-terrorism secrets to the very people trying to kill us and jeopardizing a fair adjudication by adherence to inapposite rules and procedures. Our system of justice is well recognized by reasonably objective people around the world as mature, robust and fair. No jihadist will be motivated to attack because America runs kangaroo courts. As a result, though, of the rules governing criminal cases, many may go forth armed with a mother lode of information coming out of the KSM trial about how we work to defeat them.

As others have reported and documented, years of work had already gone into preparing to try in a military tribunal this principal responsible for the carnage of September 11, 2001. While the tribunals would not be my personal choice for the best method to adjudicate responsibility for terrorist acts, those proceedings do clearly present a viable alternative to federal criminal prosecution. Not only is that work preparing the tribunal cases now being wasted, there can be no doubt that it will become the basis for defense maneuvering and the subject of legal debate in the run-up to KSM's trial.

Unfortunately, this case presents all the appearances of one brought to satisfy a political objective, and political objectives are never core federal interests that merit the initiation of a federal prosecution.

Gabor Rona: Profs. Cole and Rotunda and Mr. McCarthy's common theme is thatQuirin is the law and it authorizes military commissions for the trial of the 9/11 defendants. I disagree.

Qurin is often cited as authority for trial by military commission of "unlawful combatants." But Qurin was not about unlawful combatants. It was about privileged belligerents (members of the German military) feigning civilian status to cover a military operation: the war crime of perfidy.

The 9/11 defendants are not combatants. They do not fall within the scope of that term either under the laws of war or under the detention authority-decision of the Supreme Court inHamdi (persons engaged in hostilities captured on a battlefield). Prof. Rotunda appears to agree on the scope of Hamdi, but does not acknowledge the great liberties the government takes with laws-of-war meaning of "enemy combatant." Likewise, her assertion that Hamdanalso authorizes military commissions for "enemy combatants" is off the mark. KSM is a civilian captured far from any battlefield and rightly accused of war crimes. He can no more be tried under rules for "enemy combatants" than one can call a dog a deer in order to justify shooting it in deer season.
Quirin was decided in 1942. Common Article 3 was introduced in the 1949 revision of the Geneva Conventions. If Common Article 3 applies (and the Supreme Court said it does inHamdan), and if it prohibits trial by military commission against KSM under these circumstances, then Quirin, if it ever was relevant, is relevant no more.
As Prof. Cole acknowledges, Common Article 3 requires a "regularly constituted court." According to ICRC understandings favorably cited in Hamdan, this means "established and organized in accordance with the laws and procedures already in force in a country." A common understanding of the term "already" suggests that defining crimes and creating post hoc tribunals with lesser elements of due process to prosecute prior conduct of "the enemy" is not sporting. The remaining relevant provision of Common Article 3, which requires the application of "judicial guarantees recognized as indispensible by civilized peoples" surely also prohibits such discriminatory treatment.

Mr. McCarthy suggests that "Geneva is an incentive system, rewarding combatants for conducting themselves honorably." He's right in relation to entitlement to PoW status but not in relation to other obligations, such as due process. Indeed, if the obligation to abide by the Conventions is based on reciprocity, they would never apply. All parties can always correctly assert violations by the enemy.

When John McCain said "it's not about them, it's about us," he wasn't just taking a moral stand. He was stating the law: do unto them as we would have them do unto us. In a rights and rule of law-respecting society, the measure of application of the Golden Rule is simple: do we do unto others as we do to our own? This obligation is explicit in the Geneva provisions applicable to trial of PoWs and implicit in Common Article 3.

Practical considerations lead to the same conclusions as the law. Like Guantanamo itself, military commissions have a well-deserved toxic reputation that fuels animus against Americans. This costs lives.

Don't the terrorists win when they cause us to trash our own institutions out of fear? What is the fear? That KSM will attempt to justify his unjustifiable actions? Isn't it a sign of American confidence and fairness that he could speak in an open courtroom? Isn't this precisely the message we want to convey to would-be jihadists, rather than that their co-religionists are being railroaded in a process purpose-built and reserved for their kind?

Gabor Rona: Does the Christmas Day Bomber Umar Farouk Abdumutallab change anything about the debate on where KSM should be tried? No. Despite that the U.S. is "at war" with al Qaeda, and even if Abdumattallab is associated with al Qaeda, he is not an "enemy combatant" detainable under the laws of war. His detention and trial are properly the subject of the criminal justice system.

Did the Obama Administration properly handle the matter of who should have questioned him and where he should be tried? Yes. In a war, there's justification for military detention of fighters from on the battlefield. See the U.S. Supreme Court's Hamdi decision. But this is not justification for military detention of criminals, even war criminals, arrested beyond a traditional battlefield. It is well to remember that we have a federal war crimes act and it establishes jurisdiction in, no surprise, our regular Article III federal courts.
It is demoralizing to see the self-destructive degeneration of debate, which has been framed thus: "Why should we give alien terrorists constitutional rights?"
First, the words "give" and "rights" do not belong in the same sentence. We do not speak of "constitutional privileges," we speak of "constitutional rights." Privileges are given and may be withheld. Rights are rights.
Second, alien child molesters, serial killers and drunk drivers are no less the owners of constitutional rights when prosecuted in the U.S. than are American citizens. Same goes for terrorists.
If you doubt these propositions, you, and several Senators who should know better, doubt the very concept of constitutional rights.
Third, what really seems to be animating this debate is the assumption that for intel gathering purposes, military interrogation, detention and trial are somehow superior to civilian law enforcement interrogation, detention and trial.

Let's start with interrogation. Whether in civilian or military interrogation, and distinct from questions of entitlement to Miranda warnings, a suspect has the right to remain silent. If you think otherwise, it can only be because you believe that in military custody, interrogators can do things that they can't do in civilian custody. This is wrong. Aside from the well-established fact that abusive treatment is counterproductive, it is also immoral (remember John McCain correctly and eloquently noting that this is about who we are, not about who they are?) and illegal (remember the U.S. Supreme Court's Hamdan decision that detainees are protected by Common Article 3 of the Geneva Conventions, which mandates humane treatment? remember the Detainee Treatment Act, which counsels the same and limits interrogation techniques to those contained in the Army Field Manual?).

Well, then what about Miranda? Turns out, Abdulmutallab was questioned for some time prior to Miranda. This is permissible for any reason so long as the results of custodial interrogation are not sought to be introduced at trial. In other words, failure to give Miranda is not a constitutional violation. It's the introduction of non-Mirandized custodial statements at trial that is the violation. And if the reason to withhold Miranda warnings is a compelling public safety objective (e.g., are there other bombers on other planes right now?), then the non-Mirandized statements may still be used at trial. Abdulmutallab is, in fact, a poster child for why Miranda is not an issue in a typical terrorist attack case. There were solid eyewitnesses so they don't need his confession to convict him and can interrogate him to their heart's content without Miranda and without jeopardizing a prosecution.
So then, what about the right to counsel? Here too, no real difference. "Unprivileged enemy belligerents," (what used to be called "enemy combatants" before Obama) are just as entitled to lawyers in Military Commission trials as are civilians in federal criminal court trials. And even if not being charged and tried, but merely being held in military detention in the U.S., they are entitled to habeas corpus review, for which they have a right to counsel.
Remember Richard Reid, who also tried to blow up a plane with a bomb in his clothes and who pled guilty to federal charges in 2003 and got life? There was no outcry then about the choice of civilian interrogation, detention and prosecution. What's the difference? Shoes v. underwear? Bush-time v. Obama-time? "Reid" v. "Abdulmutallab?" I hope none of the above. But I can't think of another plausible distinction.
Fact is, federal courts have put away over 200 international terrorists since 9/11. Military Commissions have put away 3, two of which are now free and the third is still contesting the validity of the proceedings.
All in all, seems to me that the "tough on terrorism" voters should be pulling the lever for civilian, not military treatment every time.


[Mike German] 

Given that the federal courts are courts of limited jurisdiction, and have an affirmative duty to inquire into and justify their exercise of jurisdiction, should not a truly independent district judge examine and find that he has no jurisdiction in these cases or, if he does, that he ought to abstain from exercising his jurisdiction in favor of a military court or tribunal's? It's doubtful that either the government or the defense would make such a challenge in these cases, so the only real chance for airing the issue would have to come from the court. Query if amicus may raise such a challenge and what sort of standing would it have to show in order to do so.