By Michael B. Mukasey
Tuesday, July 20, 2010; A21
There were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there ["Try them in federal court -- at Gitmo," Washington Forum, July 16].
Eugene R. Sullivan, a former chief judge for the U.S. Court of Appeals for the Armed Forces, and Louis J. Freeh, a former U.S. District Court judge and director of the FBI, argued that creating, by statute, a civilian district court trial at Guantanamo would provide a fair, independent and universally respected forum, in contrast to "untested and widely questioned" military commissions; deny to Khalid Sheik Mohammed and others a military forum that enhances their image as "warriors"; and avoid the "prohibitive" security costs of a trial elsewhere in the United States.
They are wrong on numerous levels.
First, the Sixth Amendment guarantees defendants a trial "before an impartial jury of the State and district wherein the crime shall have been committed." Given the locations of the Sept. 11 crashes, this would require a jury drawn from the Southern District of New York, the Eastern District of Virginia, the Western District of Pennsylvania or the districts where the flights originated. Most if not all jurors have families, friends and co-workers who would know they were serving in a distant location. Their anonymity could not be preserved. Two "anonymous" jurors in the far less celebrated trial of the "Blind Sheikh," Omar Abdel Rahman, were terrified to find reporters waiting at their homes after the verdict.
The prospect of long-term security presents a prohibitive personal cost to jurors and financial cost to the government, and long-term sequestration is a recipe for friction and eventual disaster. Recall the principal modern experience with it in a famous case: that of Orenthal James Simpson.
Nor is it certain that the verdict returned by a civilian jury held in military custody far from home for months would be received as fair and independent.
As to the question of civilian court vs. military commission, a civilian trial would not "uphold the rule of law," nor would avoiding a military commission deny the defendants their self-styled status as "warriors." The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals. Congress recognized this when it passed the 2006 Military Commissions Act to deal with Islamist terrorism; disregarding that statute is lawless. Moreover, giving those who violate the laws of war more protection than is accorded those who follow such rules turns those rules and their underlying morality on their head.
This country has tried all manner of defendants before military commissions, from the time of the Revolution through World War II. All shared one attribute: Their acts were directed at endangering this country's survival. Those charged before such commissions do not become "warriors" simply because the forum in which they appear is styled "military." Indeed, those who conspired to assassinate President Abraham Lincoln and others in government were tried before a military commission and hanged as war criminals, even though the Civil War was over when they acted.
Proponents of civilian trials overlook practical difficulties that arise because the accused are terrorists. The battlefield, where KSM and others were captured, does not provide the setting in which evidence can be gathered the way it is when a defendant is apprehended by civilian authorities. In civilian trials, federal rules restrict admissibility of evidence; in military commissions, the touchstone for admissibility is simply relevance and apparent reliability.
Sullivan and Freeh note that the current military commissions have had mixed results. That may be due to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similar functions for organized crime bosses, had to have been among his most trusted aides. Despite the claims of Attorney General Eric Holder, civilian tribunals are not certain to render appropriately severe verdicts. Civilian courts have not returned capital verdicts against the Sept. 11 plotter Zacarias Moussaoui or those charged in connection with the East Africa embassy bombings that killed hundreds.
A more basic criticism of military commissions is that they diverge from the principal mission of the armed forces, which is to fight and win wars. And while we have had short-term success with military commissions, we need an institution that can fulfill the mandate of trying terrorists over the long term and that has the backing of government at all levels.
The long-term answer, as several have suggested, may be a court created for this purpose by Congress and perhaps presided over by Article III judges but with juries drawn from the military. That is, unfortunately, as politically unworkable now as a Guantanamo district court is practically unworkable. The current Congress won't pass such legislation, and the current president would not sign it. In the short term, then, we have to work with the tool Congress fashioned: military commissions in Guantanamo, a remote, secure and humane location. Its courtroom facility is unparalleled anywhere on the mainland for handling highly secure data, and proceedings can be monitored from the elaborate press gallery. If we pride ourselves on being a nation of laws, we can start by applying the law we have.
The writer was U.S. attorney general from 2007 to 2009 and the judge who presided over the trial of Omar Abdel Rahman in 1995.