How should “enemy combatants” captured and imprisoned by the United States in the so-called war on terror be brought to justice? Should they be prosecuted before military commissions or in the federal courts?
The answer from the Obama administration is that both venues are necessary and legitimate, and that the Justice Department will decide who should be tried where. At the same time, no alleged terrorist deemed a likely future threat will be released, which evidently means that sixty to seventy prisoners will be held indefinitely without trial under the laws of war.
Last month, Attorney General Eric Holder announced that Khalid Sheikh Mohammed, the self-proclaimed mastermind of the 9/11 attacks, would be prosecuted in federal court in Manhattan, along with four other alleged terrorists. Holder’s decision was immediately criticized for extending the broadest legal protections to the most notorious terrorist and for providing him with a public platform from which to preach jihadism. Critics argued that a military commission, where the rules of evidence are more flexible and the proceedings less transparent, would be a better way to secure a conviction without giving the accused a chance to exploit the courtroom for propaganda purposes.
The legal situation is complicated—or in President Barack Obama’s words, “a mess.” One complication is the fact that evidence derived from the abusive treatment of Mohammed is not admissible in federal court. Mohammed has been held prisoner by the United States for six years, and during that time he is reported to have been waterboarded 183 times. Despite that disturbing record, Holder appears confident that there is enough untainted evidence to secure a conviction. Legal experts also note that the recently created military commissions might have more difficulty than the federal courts in handling cases involving allegations of prisoner abuse. More important, the federal courts have a long and successful record of prosecuting terrorists without jeopardizing sensitive intelligence or national security, while the military commissions have managed to convict only three suspects in eight years. Federal prosecutors are simply much more experienced with terrorism cases. Finally, the appeals process for the military commissions ends up in the federal courts anyway. In short, the civilian courts are probably the best place to prosecute many terrorists.
In testimony before the Senate Judiciary Committee, Holder insisted that it was his responsibility to the victims of 9/11 to make sure that Mohammed is finally held accountable in a court of law. At the same time, it is important for the world, and especially those throughout the Middle East, to see how the U.S. justice system is supposed to work. Methodically exposing Mohammed’s crimes in a courtroom is not likely to create much sympathy for the defendant—even among fellow Muslims.
Holder’s decision has also been harshly criticized by those on the left. Civil libertarians fear that the proceedings will be little more than a show trial, and worry that the Justice Department has no coherent criteria for deciding who will be tried in federal courts and who by military commissions. Still, prosecutors routinely exercise great discretion in bringing indictments. Holder is making exceedingly difficult decisions; he must move the legal system beyond the mistakes of the Bush administration while prudently grappling with the ongoing terrorist threat. He admits that, to some extent, whether military commissions or the federal courts are used will be determined by how strong the government’s case is against a particular suspect. The stronger the case, the more likely the suspect will go to the federal courts.
In the face of enormous political resistance, Holder and President Obama are trying to bring the treatment of terrorist suspects back under the rule of law. Presumably they hope that giving Mohammed and others as fair a trial as possible will show that our constitutional system is capable of meeting any threat. As President Obama said in his first speech to Congress, “living our values doesn’t make us weaker, it makes us safer and it makes us stronger.”
Can Mohammed get a fair trial? Many doubt he can, and perhaps many more doubt whether he should even be given one. A similar skepticism was expressed about the trial of Nazi war criminals. Why bother? Their guilt was indisputable and their crimes unspeakable. Winston Churchill wanted Nazi leaders summarily executed. Yet the Nuremberg trials established an important precedent, showing the world how bringing mass murderers to justice allows their victims to have the last word.