Where Terror Suspects Should Be Tried

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When President Bush first announced his intention to try suspected terrorists by military commissions back in November 2001, criticism rightfully (and necessarily, given the absence of any actual cases) focused on their procedural shortcomings. Over the intervening eight-plus years, many, but certainly not all, of these procedural issues have been redressed, most recently through the adoption of the Military Commissions Act of 2009 late last year.

This leads many observers to question whether there is still any substantive basis to object to the use of this forum to try those affiliated with al-Qaeda, such as reported 9/11 mastermind Khalid Sheikh Mohammed.

The short answer is yes; the military commission system remains fatally flawed, lacking a coherent foundation in the rule of law. Ongoing public discussion assumes that the jurisdiction of commissions and Article III courts is essentially fungible, making tribunal selection a matter of discretion. But this ignores legal constraints imposed on commission use by the law of war — the legal authority justifying their employment in the first place. Military jurisdiction over both most of the potential defendants and most of the conduct charged to date is extremely problematic.

Military commissions have legitimately been used in two basic settings. First, they have been used to administer criminal law in areas under military government — that is to say, territory controlled by U.S. forces during an armed conflict. This was the basis for their original creation during the Mexican War in 1847 and for most of their subsequent use during the Civil War, Philippine Insurrection and both world wars.

Their second legitimate employment has been as a law-of-war tribunal in which U.S. military officers judge the lawfulness of the conduct of their enemy peers, evaluating their conformance to the law of war rules governing both sides.

Neither of these jurisdictional bases is present in the current cases, however, as the United States is not an occupying power and the U.S. government denies that its adversaries have any right to conduct hostilities against us, endeavoring to prosecute them for the mere fact of having engaged in combat. Omar Khadr, for example, is being criminally charged for fighting back against attacking soldiers. Essentially, the U.S. approach would render its fight with al-Qaeda not as an armed conflict, but rather as a hunting season.

There is nothing fundamentally wrong with using military force outside national borders against a capable adversary who is considered an “outlaw” rather than a legitimate belligerent — this is exactly the approach taken with pirates for centuries. But as a legal matter, this makes the al-Qaeda adversaries terrorists to be judged by ordinary criminal law, not belligerents whose conduct is properly measured against the law of war.

This result is consistent with, but an unrecognized consequence of, the Supreme Court’s apparent holding in Hamdan v. Rumsfeld that the fight against al-Qaeda is a non-international armed conflict, or NIAC. Although some law-of-war rules govern the actual conduct of hostilities during NIAC, fundamentally the lawfulness of the non-state adversary’s participation is denied. Unless the nation involved decides to accord its adversary actual belligerent status, as the U.S. has done in the Civil War, Indian wars and the Philippine Insurrection, the “enemy” must be detained and tried under domestic law provisions, not the law of war.

Claims that the commissions offer legitimate practical advantages over trial by regular federal courts or courts-martial are also largely misguided. President Bush’s original order provided only the conclusory statement that “it is necessary for individuals subject to this order … to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.”

Despite periodic public statements about the commissions’ purported advantages in the following years, proponents have never clearly established exactly why their use is legally desirable. Assertions that they are needed to overcome battlefield evidence-collection issues, for example, are bunk. Aside from the fact that almost no important detainee was seized on the battlefield, the late Chief Justice Rehnquist’s opinion for the Court in Verdugo-Urquiedez explicitly held the Fourth Amendment inapplicable outside the United States, presciently noting that to do otherwise could constrain future U.S. military operations.

In terms of the time required to reach a final judgment, the commissions will almost certainly be the least efficient of the possible trial forums. Questions about their basic structure, jurisdiction and procedure, which are not at issue with established courts, will undoubtedly be litigated for years via both direct and collateral challenges.

Finally, the widespread controversy over the military commissions’ use has left them with what is almost certainly an irreparable taint in world public opinion. Resurrecting them at a time when the administration acknowledges that “Guantánamo set back the moral authority that is America’s strongest currency in the world” seems contrary to larger national interests. Flaws in both jurisdiction and procedure coupled with a lack of good faith efforts to conduct truly fair trials have kept these tribunals from achieving credibility as a valid legal forum among close observers.

Despite recent improvements, residual defects such as the institutionalized inequalities between prosecution and defense resources, inability of the defendants to freely select trusted counsel, limits on defendant’s ability to fully participate in their own defense, coupled with a substantial history of deficient ethical conduct by the prosecution undermines their procedural credibility.

While use of actual courts-martial would resolve the military commissions’ procedural flaws, it does not redress the more significant underlying issue with law-of-war application. The only proper forum for trying the “enemy” in this conflict is thus regular Article III courts.

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