The military commissions system, a system that many civil liberties groups consider to be a second-class system of justice, will be used to prosecute Khalid Sheikh Mohammed and four others, who are accused of being involved in the September 11th attacks. The Defense Department also may give Mohammed and the four others the death penalty if they are convicted.
The news today, as CNN reports, comes from a “refiling of charges against the accused conspirators.” President Barack Obama tried to have the case heard in a New York federal court instead of by a military tribunal in 2009. But Republicans created a “political firestorm.” Former New York City mayor Rudy Giuliani said moving the trial to New York gave “benefits” to Mohammed and “much less benefits to the public” because “his wish was to be brought to New York.” Rep. Peter Hoekstra of Michigan suggested the trial would be used by the plotters to create a “circus” and “push their ideology.” And 2008 GOP vice presidential nominee Sarah Palin called the move “an insult to the victims of 9/11, as Mohammed will no doubt use the opportunity to spew his hateful rhetoric in the same neighborhood in which he ruthlessly cut down the lives of so many Americans.”
Sen. Pat Leahy, a Democrat from Vermont, pushed back and said “it was important to set an example for the rest of the world.”
We have systems that work. We’re not afraid of these people. We’re ready to stand up to them. I don’t think we should run and hide and cower. Let’s use our system. And let’s convict them.
That reasonable and sober argument was no match for the hysterical uproar from conservative commentators and Republican politicians, who were not going to tolerate a federal trial for the accused 9/11 plotters. And like Obama caved on the closing of the Guantanamo Bay prison, Obama distanced his administration from the proposal to try 9/11 plotters in federal court and eventually committed to trying them in the military commissions system.
Military commissions were something Obama opposed when he was a 2008 presidential candidate. At the Wilson Center in Washington, DC, in August 2007, he declared:
[I will oppose] a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America’s courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.
But, in March of last year, faced with a Congress that was imposing limits on the Administration’s ability to close Guantanamo and try terror suspects in federal courts, Obama again ceded the narrative to conservative right wing politics. He lifted the ban on military tribunals for terror suspects being held at Guantanamo Bay.
Georgetown University law professor Jonathan Turley reacted:
Obama has ordered the resumption of these trials — denounced both domestically and internationally as trumped up proceedings designed to make convictions easier by omitting core constitutional and procedural protections. Indeed, these tribunals are being heralded as guaranteeing swift punishment — an implied recognition that we could not convict some of these individuals in a fair federal trial.
Moreover, the lifting of the ban presented a profound issue, which Turley recognized. Obama would now “choose Caesar-like” between terror suspects who should “receive a fair trial in federal court” and those who should be “sent to military tribunals.” The decision would be based on how important it was to “secure” a conviction. And, essentially, Obama would be differentiating between cases by sending some suspected of a terror act to federal court proceedings and others to military commissions.
Anthony Romero, Executive Director of the American Civil Liberties Union (ACLU), concisely points out:
The Obama Administration is making a terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice. Whatever verdict comes out of the Guantánamo military commissions will be tainted by an unfair process and the politics that wrongly pulled these cases from federal courts, which have safely and successfully handled hundreds of terrorism trials,” Romero said.
“The military commissions were set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial. Although the rules have been improved, the military commissions continue to violate due process by allowing the use of hearsay and coerced or secret evidence. The American people have already waited far too long for justice for the 9/11 attacks, and the administration’s use of the military commissions means that justice will never truly be achieved, in the eyes of our nation or the rest of the world.
These may be people who committed one of the most heinous acts in American history, but that should not mean they are put through a justice system set up to obtain easy convictions. If we believe American justice works, there is no reason why fear should be allowed to win.
Trying terror suspects in federal courts works. Ahmed Ghailani was found guilty of conspiracy for his role in the 1998 bombings of the US embassies in Kenya and Tanzania. He was given a life sentence. But, he had been charged with 285 counts and was only convicted of one count of conspiracy. That was because CIA agents tortured him and evidence they obtained through torture was not admissible in federal court.
A May 30, 2005, memo providing the legal justification for torture and written by Office of Legal Counsel Stephen Bradbury mentioned that Khalid Sheikh Mohammed was waterboarded 183 times. Waterboarding is torture. Torture is a war crime. He was the victim of war crimes. But, now with his case proceeding to a military commission, it isn’t likely that this fact will factor into the verdict like it might have if Mohammed had been tried in court.
Thus, the decision to send the alleged 9/11 plotters to a military commission is not merely a “mistake.” It is an act of political cowardice, the same cowardice which has led the Obama administration to implicitly grant immunity to Bush administration officials suspected of involvement in torture. It is a further solidification of the bipartisan national security consensus, which Republicans cravenly champion and which Democrats are too indifferent or gutless to challenge. And it is a sad precedent where a newly established parallel legal system is put to work trying terror suspects all because of the bloodlust and thirst for vengeance the political class and many Americans have, as they undoubtedly long for the moment when the alleged 9/11 plotters are executed. (In fact, when considering current Obama administration counterterrorism policy, perhaps the plotters should just be released in Yemen or Pakistan somewhere and killed by a drone. Why even expend Defense Department resources and hold a tribunal proceeding if they are inevitably going to be put to death?)
Today the system tries 9/11 plotters. In the future, who knows? No matter who is tried, this is an example for other countries that might be wondering how to make it easier to convict individuals from foreign countries: put them through a second-class system that discriminates between citizens and non-citizens.
There would be no guarantee that one of those people put through the system in another country would not be an American one day. And when that happens and a country said they were afraid for their national security, what would US government officials say? They would likely engage in blatant hypocrisy as they tried to get the American returned to the United States so the individual could be tried in America. They would likely validate the concerns that civil liberties groups and international human rights groups had all along—that it was a troubling precedent to establish a military commissions system for terror suspects.