U.S. Brigadier General Mark Martins is an honorable man with an impossible job: Convicting Khalid Sheikh Mohammed and his associates of the Sept. 11 attacks without making it look like a show trial.
The arraignment on May 5 at Guantanamo Bay, Cuba, had all the hallmarks of a disaster in the making. The defendants refused to cooperate or even acknowledge the authority of the court. The prosecution and, for a time, the judge appeared willing to suppress the defense’s efforts to bring up the waterboarding and other harsh interrogation techniques used against some of the defendants. Above all this loomed the greatest challenge to the legitimacy of the tribunal: No one, inside the room or outside, thinks there is any chance that Mohammed will not end up executed.
After nearly a decade of Supreme Court decisions affording rights to Guantanamo detainees and rejecting proposed military commissions to try them, it would be reasonable to ask: How did we get here? Why are we on the brink of a trial of the century that seems unlikely to satisfy the most basic demands of criminal justice?
There is plenty of blame to go around. Part of it lies with Congress, which thwarted President Barack Obama’s campaign promise to close Guantanamo within a year. Part of it lies with the Obama administration, which initially announced its intention to give Mohammed a civilian trial in New York and then reversed itself. We also must not forget the George W. Bush administration, under which Mohammed was waterboarded 183 times in a month.
Taken together, these events left the Obama administration with very few choices. Mohammed and his colleagues could have been detained indefinitely on the theory that they are enemy combatants who can be held until the end of hostilities. Because al-Qaeda is unlikely ever to surrender (and how would we know if it had?), the men could have been locked away for the rest of their lives without trial.
This may seem like a strange way to think about prisoners of war in a war without end; but it follows from the view of detention adopted by two administrations and by Congress, and so far not reversed by the courts. Indeed, in the event that any of the five men about to go on trial is acquitted of responsibility for the Sept. 11 attacks, we can fully expect he would remain locked up forever anyway.
Instead, the administration opted for a military commission. To be sure, this panel is very different from the kind designed by the Bush administration and rejected by the Supreme Court in 2006 for giving insufficient rights to defendants. It must follow the same rules of evidence that apply to ordinary courts martial. The defendants get lawyers, and they will get the opportunity to be heard, if they exercise it.
Still, the commission will be staffed by soldiers. The prosecutors, led by General Martins, will be in uniform -- and so will the judge and jury. The whole thing will take place under the extraordinary security precautions of Guantanamo, where the defense lawyers say they cannot form relationships with their clients. Limited news media coverage will be allowed in the courtroom. Yet to a significant degree, this trial will take place out of sight.
U.S. military commissions do not have a stellar history of producing legitimate-looking outcomes. After John Wilkes Booth assassinated Abraham Lincoln and was killed by his pursuers, the Union tried eight people before a military tribunal and hanged four of them for participating in the conspiracy. (One of the others died in prison, and the rest were pardoned a few years later.)
No Actual Sabotage
During World War II, two ragtag groups of English-speaking German saboteurs were deposited by submarine at Ponte Vedra Beach, Florida, and Amagansett, New York. Caught when one of their number turned himself in to the FBI, the men were tried by a military commission held in the Department of Justice. The Germans hadn’t engaged in any actual sabotage. But the commission convicted them of entering the U.S. while out of uniform with the intent to engage in sabotage. Six of the eight were electrocuted, including one who was a U.S. citizen.
The fundamental problem for a military commission is that no one expects the soldiers of a state to acquit enemies of that state accused with breaking the laws of war. Once the outcome is no longer in doubt, there is every reason for the defendants to try to make a mockery of the proceedings. A tribunal is a Catch-22 situation: It needs to allow a defense in order to make the trial look credible, but the defense will use the opportunity to impugn the credibility of the tribunal.
There are exceptions. The most famous -- and most successful -- military commission was at the Nuremberg trials. At the time, however, critics in the U.S. and elsewhere fretted that the defendants were being charged with the crime of “aggressive war,” which was not contained in any international treaty but was alleged to be a crime under customary international law. Genocide was charged only insofar as it was part of the Nazis’ crime of aggressive war. In a private letter, the U.S. Chief Justice Harlan Stone referred to the Nuremberg trials as “a high-grade lynching party.”
Today, however, we remember the Nuremberg tribunal as a major victory for international law. We tell ourselves, a bit anachronistically, that it punished the Nazis for genocide. Arguably, the ends -- creating international justice --justified the means. We should have a similar goal for the Guantanamo tribunal. But, given Saturday’s circus, the odds of achieving it look very long indeed.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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Today’s highlights: the View editors on “superbugs,” France’s new president and Obama’s failures on gay marriage; Jeffrey Goldberg on getting tough with Syria; Mark Buchanan on the causes of the “flash crash”; Noah Feldman on justice at Guantanamo Bay; Michael Kinsley on rising inequality; Sally Satel on improving organ donation.
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