Law & Justice / Terrorist Trials Jury Out on Whether to Try Terrorists In Civilian Court or Military Tribunals by Seth McLaughlin The media and political junkies had a field day last month after Vice President Joe Biden and his predecessor Dick Cheney traded barbs over the Justice Department’s handling of alleged Christmas Day airline bomber Umar Farouk Abdulmutallab as a civilian and not an enemy combatant. A headline in the New York Post read, “Biden and Cheney go toe-to-toe on terrorism, as battle of the veeps heats up.” Fox News equated it to a boxing match, “Biden vs. Cheney: Battle of the Vice Presidents.” And late night’s David Letterman joked that Cheney was upset with Biden because “when he moved in after they were elected, he closed down Cheney’s dungeon in the White House,” alluding to Cheney’s belief that waterboarding is a valuable interrogation technique. Jokes aside, the disagreement between Biden and Cheney is part of a long-running political dispute over the best way to deal with “terrorist” suspects — a fight that most recently has complicated plans to close Guantanamo Bay prison, to handle Abdulmutallab, and to try alleged 9/11 mastermind Khalid Sheikh Mohammed in New York federal court. The battle dates back to shortly after the Sept. 11, 2001, attacks when President Bush signed an executive order that called for suspected terrorists or people associated with terrorists to be tried in U.S. military tribunals instead of the civilian court system. Supporters said tribunals provided the United States with more leeway than civilian courts because of less stringent rules regarding evidence and because a conviction requires a two-thirds vote by a majority of the members present at the time of the vote, as opposed to a unanimous verdict by a 12-member jury. Supporters also argue that tribunals remain the most realistic way to preserve national security, to achieve justice under the complexities of today’s war on terrorism, ease security concerns and save money. Following a few minor tweaks, they say the commissions are now fully prepared to deal with terrorist suspects. But over the years, critics have said the military tribunals system has proven to be unreliable, legally questionable and ignorant of the laws of war and the Geneva Conventions. They argue that trying suspects in U.S. federal criminal court would send a powerful message to pockets of the world, where people have been shocked by the way the United States has treated terrorist suspects. They also point out that suspects were successfully tried in federal courts dozens of times during the Bush administration. So, the back and forth between Biden and Cheney is just another chapter in an ongoing feud over whether military tribunals or the federal court system is the best legal arena to prosecute suspected terrorists, and the laundry list of thorny legal issues that comes with that question. And politically speaking, it’s another fight where Republicans are falling back on the time-tested rhetoric of the Bush-Cheney years, casting their Democratic counterparts as “soft on terrorism” and using it as another opportunity to jockey for position before the crucial midterm elections this fall. Gitmo, KSM and Justice This dispute regained footing hours after President Obama took office and suspended the controversial Guantanamo Bay military tribunals. At the time, many civil rights groups hoped it represented the first step in fulfilling his campaign promise to close down the detention camp in Cuba and phase out the reliance on military tribunals. But months later, Obama changed course after he made it clear that the military commissions could be refashioned into an effective forum for trying certain alleged terrorists. Soon after, Congress approved some proposed changes and in October, Obama signed the reforms into law, basically expanding due process rights for detainees. Among the fixes: precluding the use of coerced testimony; limiting the use of hearsay testimony; establishing new procedures for handling classified information, similar to procedures applicable in the civilian courts; providing defendants with fairer access to witnesses and documentary evidence; and requiring that defendants be provided with appropriate representation and adequate resources. The following month, U.S. Attorney General Eric Holder announced that alleged 9/11 mastermind Khalid Sheikh Mohammed, better known as KSM, and four other suspected terrorists would be tried in a New York City federal court, while five other detainees at the Guantanamo Bay prison, including Abd al-Rahim al-Nashiri, alleged to have planned the 2000 bombing of the USS Cole, would face military tribunals. While some said the approach sent mixed messages, others agreed that the two-tiered system of justice was a smart way to move forward. “We might call them the ‘high-quality’ [civilian] tier and ‘low-quality’ [military] tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy,” Eric Posner, law professor at the University of Chicago, posted on the Volokh Conspiracy legal web blog. “The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.” Posner argued that the approach made sense because “endless detention without trial is no longer a politically viable option.” “The government will make a judgment as to whether a suspect is dangerous or not,” he wrote. “If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.” Next Page

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