Trial by Fire


At long last, one way or another we’re about to learn a
great deal about military commissions. The charges prosecutors filed Monday against
Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot
proceed credibly to trial in anything less than a viable court system. The
evidentiary questions they pose are too tricky, the charges are too severe, the
interrogation tactics are too ugly, and with 3,000 people dead and the
government seeking death, the stakes are too high. More than six years after
the Bush administration first introduced military commissions, finally we will
learn whether they offer a plausible means of trying terrorists or whether the
system really is the total flop it has seemed to be so far.

Flop is actually a generous word for the commissions’
performance to date. Bush announced them shortly after the attacks to great
consternation from civil libertarians and human rights groups, who feared they
would menace liberty. But this system hasn’t even been competent enough to put
people on trial. Despite all the sound and fury, it has produced only a single
completed proceeding, a guilty plea from an Australian, David Hicks, who was insignificant
enough to be sent home a few months later, and was released from prison in

The commissions haven’t even managed to get convictions from
people who were positively begging for them. At a hearing of his abortive commission
trial in 2004, Ali Hamza Ahmed Suleiman Al Bahlul announced: “I testify that
the American government is under no pressure. ... I am from Al Qaeda.” Ghassan Abdullah
Al Sharbi went further. He freely admitted to the very serious allegations
against him: conspiracy to murder and attack civilians and to commit terrorist
acts. “I’m going to make it short and easy for you guys. I’m going to say what
I did without denying anything. I’m proud of what I did and there isn’t any
reason of fighting what I did,” he told the court. “I’m willing to pay the
price no matter how much you sentence me even if I spend hundreds of years in
jail. In fact, it’s going to be an honor--a medal of honor to me.” Both men
remain at Guantanamo,
and notwithstanding their efforts at self-incrimination, neither has seen a
guilty verdict.

And it is this system that we are now asking to deal with a
case that is as knotty and difficult as a case can possibly be. The defendants
are truly the worst of the worst. They have been subjected to, to use the Bush
administrations terms, “enhanced” interrogation techniques, including, in one confirmed
instance, waterboarding, and we can therefore expect the provenance of every
shred of evidence to come under sustained assault from any competent defense
counsel. And this litigation will take place in an environment in which almost
nothing has been settled procedurally and in which virtually all questions are therefore
matters of first impression.

It’s a sink-or-swim situation for a system that has shown
little aptitude for swimming. And for better or worse, it will clarify a lot.

If, by some miracle, the commissions swim, they will fundamentally
alter the debate over terrorist trials. If the military can conduct an open
proceeding that provides a reasonable opportunity to litigate difficult
questions regarding torture by genuinely testing the government’s evidence that
may have been derived (directly or indirectly) from such techniques, it might
just succeed in using this trial to create legitimacy for its new institution
of international justice. To be sure, the controversy over military commissions
will not go away entirely; many people in the United States and its allied
countries are opposed to them in principle. But a successful, fair trial of
this magnitude would dissipate the controversy considerably. Most people, after
all, don’t know how trials under the Military Commissions Act differ from those
under the Federal Rules of Criminal Procedure or the Uniform Code of Military
Justice. They know only that a lot of other people believe these trials will
offer kangaroo justice. To the extent that the commissions turn out to be more balanced
than that, public anxiety will ease and the administration may be able to
normalize them.

If the trials fail, however, the commissions will probably never
recover. Trying Al Qaeda’s top dogs is their whole purpose, after all. If they
can’t handle this kind of case, and handle it better than any existing
alternative, what good are they? There are two ways for the commissions to
fail. If they make conviction too easy for the government, they will confirm
the worst fears of human rights groups, liberals, and America’s European allies. They
will fail, in other words, by succeeding. The second possibility is that--with
every imaginable issue up for litigation in this case--they will collapse under
the sheer weight of the task before them, and never really get off the ground.
Either failure will send policymakers back to the drawing board, forcing them
to decide the same question the Bush administration faced six years ago: whether
to adapt federal court trials to the challenges of international terrorism or
whether to try something new.

It is also possible that the commissions will neither sink
nor swim but tread water--that is, produce a marginally credible trial but one
with a lot of rough edges that still attract international and domestic
suspicion and criticism. This may be the most likely outcome. And if it comes
to pass, it will suggest that the commissions may be a work in progress--the kernel
of a good idea implemented with inadequate imagination and respect for the
development of the American legal system since the military last used
commissions in the wake of World War II. The good idea is that terrorist cases
require some non-trivial departures from conventional federal court norms. The
inadequate imagination lay in the administration’s too-strong reliance on legal
models developed for warfare, rather than developed for the peculiar task of
fighting terrorism. The trial of KSM and his co-defendants may end up working
at some level and still highlight the need for further development of a trial
system adapted for this purpose, not imported from past wars.

Among the Bush administration’s great failures in the legal
war on terrorism, taking six years to charge the September 11 conspirators and
having even at that late date only an untested trial regime ready to handle the
case ranks high indeed. In those years, the world has grown complacent about
the threat the defendants’ colleagues at large still pose. Its focus has
shifted from what they did to the United States
before their capture to what the United States did to them after
their capture. This trial would have been difficult enough if it was merely tasked
with delivering justice for September 11. But now it has to do so much more: finish
building, and start justifying, a new legal regime for terrorist trials. If it
fails in either respect, it will probably bury, once and for all, the project
of creating one.

 Benjamin Wittes is a Fellow and Research Director in Public
Law at The Brookings Institution and a member of the Hoover Institution Task
Force on National Security and Law.

By Benjamin Wittes

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