How Should Terrorists Be Tried? Neither military commissions nor civilian courts are right for the job, but a compromise option is there for the taking.
Omar Khadr is an al-Qaeda terrorist who killed one American soldier and maimed another. In a military-commission proceeding, he was permitted to plead guilty in a deal that capped his sentence at a mere eight years. We must say “capped” because the agreement provides for Khadr to be returned very soon to his native Canada.
In Canada, the law is very favorable to convicts who commit their offenses as juveniles. Khadr, who is now 24, was 15 when he threw the fateful grenade. On Canadian soil, his incarceration will be governed by Canadian law, not the U.S. military-commission sentence. The likelihood is that the terrorist will be released in a year or two: an unrepentant jihadist hero still plenty young enough for another decade or three of plotting against Americans.
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Of course, the slap on the wrist Khadr got seems draconian compared with a military commission’s handling of Salim Hamdan, a bodyguard and confidant of Osama bin Laden. After years of helping the al-Qaeda chief run his network, Hamdan was captured in possession of missiles intended for use against American troops. Military prosecutors asked for a 30-year term. The commission instead meted out a stunning five-and-a-half-year sentence — resulting in Hamdan’s release and repatriation, since he had already spent more than five years in custody.
It’s worth remembering these disgraceful results while we listen to the heated commentary over this week’s verdict in the civilian terrorism trial of Ahmed Ghailani. Yes, the terrorist was acquitted on 284 of the 285 charges arising out of al-Qaeda’s 1998 bombings of American embassies in Kenya and Tanzania. Nevertheless, on the one count of conviction, conspiracy to blow up government buildings, he faces a mandatory minimum of 20 years imprisonment. More importantly, the high likelihood is that a life sentence will be imposed.
There are terrible downsides to using the civilian justice system to prosecute our wartime enemies. There are also compelling historical, statutory, and human-rights reasons not to do it. But those of us who oppose trying enemy combatants in civilian federal courts must honestly acknowledge that federal judges have exhibited a far more sober and serious approach to terrorists than have their military counterparts.
Yes, a civilian trial is an intelligence bounty for the enemy — a function of due-process rules designed for the benefit of American citizens, who are presumed innocent. And yes, the civilian justice system is extremely limited in what it can accomplish. Terrorists plot their mayhem in overseas redoubts, where American law does not apply and American law-enforcement cannot operate. That’s why bin Laden, to take the most prominent example, has been able to orchestrate a string of atrocities throughout the dozen years he’s been under U.S. indictment.
Civilian due process obstructs the government from presenting its best case against these worst offenders, as happened in the Ghailani case when a key witness was suppressed. Civilian justice is something of a crapshoot in that a well-presented prosecution case can be derailed by a single loopy juror, as also happened in Ghailani. As a statutory matter, Congress has enacted military commissions for enemy combatants — a strong statement by the people’s representatives that our civilian courts should be closed to our enemies during wartime. From a human-rights perspective, moreover, it is perverse to reward alien mass murderers with the enhanced due process of civilian courts — with the same rights as the Americans they kill. Our jihadist enemies are not entitled to that treatment; their atrocious methods flout international standards that are designed to protect civilians.
Still, all that said, when terrorists are brought to civilian court, they are convicted and they are slammed. The 1993 World Trade Center bombers received jail terms of hundreds of years each. In my prosecution against the Blind Sheikh (Omar Abdel Rahman) and eleven subordinates from his terror cell — the cell that carried out the Trade Center bombing and plotted an even more ambitious (but unsuccessful) attack against New York City landmarks — the top terrorists were sentenced to life imprisonment. The least culpable among them, who barely made it into the conspiracy, was smacked with a 25-year term.
"There is a better answer, and it is one the Obama administration and a more Republican, more national-security-conscious Congress can accomplish. We can finally stop talking past each other and create a national-security court system that melds the best elements of military and civilian justice"
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KSM might die of old age before everyone can agree on how a new the "national-security court system" should work.
If the system of military justice Congress created for trying Gitmo detainees is severely flawed, what reason is there to expect that another created using the same process will be better?
I say go with the established military tribunal route at least until it is obvious it is not working. I do not think enough cases have been tried to come to any conclusions about its efficacy.
We will sign on with the understanding that it is, indeed, national and that it is about national security. It will be instituted, set up and run by America and for America. It will not be influenced by the International Criminal Court, the UN, any other treaties or conventions, et cetera. It will not be constrained by chain-of-custody evidentiary rules and the like. It will not be constrained by a presumption of innocence. Our allies will NOT be attracted to our federal judges. If our allies were truly allies, a military tribunal consisting of us and our allies would have already been set up. Years ago.
Sir,
These jihadists do not represent any government; they do not wear uniforms, or fight under a recognized flag. They do not even meet the criteria for spies of a foreign power. They claim status as members the Ummah, the faithful of the mythical, chimeric, Islamic Caliphate.
In as much as they are citizens or subjects of a legitimate government, they should have some rights - not being put to torture would be one right.
Nevertheless, if your suggestion for a new venue and procedure fails to materialize, as bad as it sounds, the Churchill solution might be a better answer. No trials at all - firing squads instead.
The only thing "disgraceful" about the Khadr trial was that it ever happened in the first place.
He was one insurgent out of thousands that would fight in the Afghanistan and Iraq wars, all equally "unprivileged belligerents", i.e. fighters not attached to regular state militaries. But he was the only one charged in the deaths of thousands of soldiers.
His actions clearly weren't violations of any international law of war, unless you believe the myth about ambushing a person performing medical duties, inconsistent with now known facts of the case.
On top of that, he was entitled to consideration under international law pertaining to minors in armed conflict, signed by the US, based on the plain language of the law, not individual opinons on who should be a "child soldier" or who shouldn't.
He was raised mainly in and near Afghanistan, and recruited into to war by his father and friends of his father at age 15. He participated in an insurgency against a military that invaded the country in which he was a long time resident.
The whole sordid affair was disgraceful and that's probably why it ended in a plea bargain, his possible eventual release in return for burying an embarrassment and getting an agreement from him not to appeal or sue the US government for mistreatment.
A question for Mr. McCarthy who has for more expertise in this area than most - is the problem hat military tribunals are inherently defective, or did we run into two cases where the presiding officers and prosecutors did not perform?
I just have this fear of an Obama appointed Federal judge sitting on the panel for these cases. I get no comfort from FISA judges, as one could think they should rule themselves unconstitutional.
