Archive for Sunday, August 10, 2008

Military commissions are a judicial detour

August 10, 2008


The president's military commissions were inaugurated with the loftiest rhetoric.

On Nov. 13, 2001, President Bush issued a military order authorizing trials of suspected terrorists before military commissions. Terrorists, the president warned, might cause "mass deaths and ... place at risk the continuity of the operations of the United States government." And only military commissions would suffice to bring terrorists to justice, because "given the danger to the safety of the United States" and the unique "nature" of terrorism, "it is not practicable to apply ... the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

So how are those commissions working out for you, Mr. President?

On Wednesday, after 6 1/2 years of controversy and delay, the administration finally scored a "victory" in a military commission trial at Guantanamo Bay, Cuba, gaining the conviction of one terrorist mastermind.

Osama bin Laden, you ask?

Ah, no. He's still living it up somewhere in Pakistan, enjoying a good chuckle at our expense.

Wednesday instead saw the conviction of Salim Ahmed Hamdan, who fessed up to being ... bin Laden's driver. He was accordingly convicted of the "war crime" of "providing material support for terrorism." Next up before the military commissions: bin Laden's pastry chef, for providing culinary support to terrorism.

Just kidding! But among those next up for trial at Guantanamo - seriously - are two other uniquely dangerous terrorist masterminds, Omar Khadr and Mohammed Jawad. Khadr, a Canadian, was all of 15 years old when he allegedly lobbed a hand grenade at U.S. troops during a July 2002 firefight in Afghanistan. He now has spent more than a quarter of his short life in U.S. detention. Jawad, an Afghan, is also accused of throwing a grenade at U.S. troops in Afghanistan. He was 16 or 17 at the time of the December 2002 incident, and, like Khadr, he's been in U.S. detention ever since.

To be fair, the military commission system does have another conviction to its credit: Early in 2007, Australian citizen David Hicks, a Taliban supporter who was turned over to U.S. forces by Afghanistan's Northern Alliance for a $1,000 bounty, pleaded guilty to a charge of "material support for terrorism." He was returned to Australia, where he served out a nine-month sentence and is now free.

Don't get me wrong: Al-Qaida is one of the most appalling organizations ever to blight this Earth, and the Taliban is little better. Military responses to terrorism are at times necessary, and U.S. troops have every right to incapacitate or detain those who lob hand grenades at them. Bin Laden's driver may well deserve to remain locked up.

But are these guys really the worst of the worst, evil terrorist masterminds who so threaten "the continuity of the operations of the United States government" that they couldn't possibly be tried in U.S. civilian courts?

After 6 1/2 years - after detaining hundreds of people at Guantanamo, after trying interrogation techniques adapted from the Chinese and the KGB, after countless protests from the International Committee for the Red Cross, after alienating close allies and creating a cause celebre for our enemies - have the military commissions really been worth it?

Wednesday's conviction of Hamdan might not even survive appeal. Hamdan was convicted of the "war crime" of providing "material support" for terrorism. But there's no international law precedent for viewing the provision of material support for terrorism as a "war crime." That fact will allow Hamdan's defense team to argue, on appeal, that the military commissions didn't properly have jurisdiction over those charges. (Hamdan was acquitted of conspiracy charges, but those charges probably will be faced by other detainees and will confront a similar challenge).

None of this bodes well for the ability of military commissions to successfully try the few bigger fish at Guantanamo, such as Khalid Shaikh Mohammed, who probably did play a key role in planning the 9/11 attacks. And the irony is that while the military commissions have been tied up in knots, obsessed with small fry, the federal courts have been humming along, trying and convicting dozens of genuinely dangerous terrorists, including 9/11 plotter Zacarias Moussaoui and shoe-bomber Richard Reid.

It's like those signs advertising housing developments to commuters stuck in traffic: "If you lived here, you'd be home now." Odds are, if the administration had stuck to the tried and true federal court system, it would be home now - and most of the Guantanamo detainees suspected of serious crimes would have been tried and convicted by now too.

- Rosa Brooks is a professor at the Georgetown University Law Center. Her e-mail address is


cato_the_elder 9 years, 9 months ago

Dream on, Ms. Brooks. The active use of our federal court system by those who advocate for accused terrorists has been the primary cause of the many obstacles that have been placed in front of the Bush administration at every turn in its efforts to bring terrorists and their agents to justice under military commissions. The system of military commissions was authored by the Bush administration in direct response to the terrorist attacks against this country on September 11, 2001, in order to bring terrorists and their agents to trial as swiftly as possible in a time of war. It was also the administration's hope to obtain maximum information from them in the process, and you don't have to be a rocket scientist to figure out what position Osama bin Laden's driver occupied in that regard. Of course, Ms. Brooks, you would undoubtedly be expected to criticize the results of these efforts just as you have criticized everything else having anything to do with the Bush administration since the president's inauguration, including your tried and true cheap shot today relating to the administration's intense efforts to capture Osama bin Laden - who was only free because the Clinton administration had intentionally passed on taking him out earlier.

cato_the_elder 9 years, 9 months ago

Tom, the Dems have had a game plan drawn up for some time in which they will express relief at his capture while simultaneously whining that it took so long, and then also vigorously downplaying the significance of Osama as a danger any longer - even though they have routinely criticized the Bush administration for not finding him, especially whenever there has been good news from Iraq, e.g. free elections, the capture of Saddam, etc. Of course, hypocrisy is nothing new to them.

Corey Williams 9 years, 9 months ago

And, of course, Bush's detour to Iraq. That didn't have anything to do with our failure at capturing Bin Laden.

JHOK32 9 years, 9 months ago

How about invading Georgia? Aren't we suppose to come to the rescue of fellow democratic sovereign states? Defend freedom, defeat evil, you know , all that crap Bush fed us about invading Iraq? Oh, I forgot, does Georgia have any oil?

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