Over the past few weeks, a number of local columnists (such as my colleague, David Rosman, and the publisher of the Columbia Tribune*, Hank Waters) have posted columns defending or praising the administration’s decision to prosecute Khalid Sheik Mohammed and four others in a New York civilian court while trying the remaining terrorists by the military tribunal structured by Congress and the Supreme Court for that very purpose. The only area in which I find agreement is that it can be done.
The critical question — begging a logical and reasonable answer is – why? When asked that very question before the Senate Judiciary Committee, Attorney General Eric Holder, ostensibly the architect of this decision, gave neither convincing nor coherent responses. When grilled by U.S. Sen. Lindsey Graham, R-S.C., an experienced prosecutor and military JAG lawyer, Holder's answers varied from evasive to confused, suggesting this decision may have received inadequate vetting.
The stated justifications for separating the trials of these defendants range from demonstrating or, in some eyes, restoring the integrity or openness of the rule of law in the U. S. Judiciary, trying them near Ground Zero for the symbolism of satisfying closure and the absurdity that a civil trial in New York is a better guarantee for a conviction than is the military tribunal.
Speaking bluntly in the vernacular that everyday people will understand: Not one of those dogs will hunt and anyone purporting to believe otherwise is fooling him/herself.
First, there is strong precedent for trying war criminals and unlawful enemy combatants by military tribunal; the Mexican War, the Civil War and World War II are historic examples. Additionally, the Military Commissions Act of 2006 was established by Congress and signed into law by President George W. Bush, explicitly for that purpose. Commensurate with the Supreme Court’s decision in Hamden v. Rumsfeld, the act authorized trial by military commission for violations of the law of war and for other purposes.
The notion that the military tribunal is an inferior judicial body or, as alleged by some a kangaroo court, is one generated by misinformation, ignorance or out-and-out falsehood. The Military Commissions Act was established for primary jurisdiction over unlawful enemy combatants — the presiding judge, the prosecution and defense and the members of the tribunal (jury) are all military officers – who better to establish guilt or innocence and the subsequent sentence than those experienced in war?
Having served as a trial and defense counsel for special courts-martial and as a member and president of special and general courts-martial, I can and will attest to the professionalism, integrity, experience and attention to duty of officers assigned to military courts. Moreover, these tribunals guarantee to unlawful combatants rights over and above those authorized by the Geneva Conventions.
The idea that somehow by trying them in civilian court we restore the dignity of our judicial system or establish to the world our superiority in the areas of the rule of law and fair and open trials is one that should insult Americans. Since when does our judicial integrity or adherence to the rule of law have to be restored or demonstrated to a world that advertises beheadings, and condones stoning to death, honor killings and mass incarcerations of political prisoners?
This is political correctness at its most pernicious.
That securing a conviction is more likely in a civilian court defies common sense, particularly, because Mohammed had agreed to plead guilty before the military commission and be executed for his crimes. To proclaim any trial, civilian or military, as a slam dunk is similarly foolhardy. Convictions are secured by the presentation of evidence, which may be accepted or refused by a sitting jury who are after all human beings replete with prejudices and opinions.
Physical security for this trial will be an extremely costly nightmare: the terrorist threat to disrupt or destroy the trial is very real. An early estimate of the cost of the trial comes in at a minimum of $75 million for the first year alone (New York police commissioner Raymond W. Kelly estimated that cost, attributing it largely to police overtime costs). How long will this, advertised by Mr. Holder as “the trial of the century,” last and at what price in manpower and federal monies?
And, it is not a hypothesis but a known fact that the civilian courts extended scope of rights of cross examination and discovery, coupled with broad media coverage, will avail our enemies information of classified intelligence sources, procedures and methods of interrogation.
While this decision, regardless of the level from which rendered, may have been born of the best of intentions, in truth, it is grandstanding without full assessment of the consequences–intended or unintended–of an extremely dangerous and costly action. Departure from a procedure established explicitly for a certain venue must be justified as necessary – this was not.
J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at JKarlUSMC@aol.com.