I’m coming a bit late to this debate, but the Ahmed Ghailani debacle should be a wakeup call. In all but the simplest circumstances, it is extraordinarily difficult to conduct a proper civilian trial (in an American court with American rules) of a terrorist detainee captured overseas.
Much of the debate over terrorist trials has occurred at the theoretical level, as abstract ideals are tossed around without consideration of on-the-ground realities. Yet I was there, on the ground, running detainee operations for an armored cavalry squadron during the Iraq Surge. As a judge advocate, I was responsible for ensuring that each of our detainees was sent to holding facilities with the best evidence “packet” possible. I was responsible for doing what I could to provide additional supporting evidence, when possible. As a soldier and staff officer, I also had a grasp on the overall pace of operations, the challenges our guys faced in the field, and the horrific dangers at the height of our battle with al-Qaeda.
So we did the best we could, and it was pretty darn good. But would our evidence “packets” have secured convictions in the Southern District of Manhattan? When I was in Iraq, we did not have a single M.P. (military police) on our base. Our work was done with cavalry scouts and armor officers, and they did a magnificent job and took great care in their work. But they’re not detectives, there were no Miranda warnings, and they cannot be held to that standard. It’s absurd. They’re war-fighters, not cops.
I vividly remember the day I learned that lesson. It was early in the deployment, and I had a lot to learn. We’d brought in a few detainees, and I was surveying the evidence packets. I approached the troop’s First Sergeant (most senior noncommissioned officer) and said, “First Sergeant, do you think we can get some more stuff on these guys? Could we go out and interview some additional witnesses? I’d like better Iraqi sworn statements.”
I felt like an idiot for asking the question. I felt even sillier as I saw and experienced more and more of the world “outside the wire.” We can obtain considerable amounts of evidence, but real police work? In combat? That can be a life-threatening impossibility.
— David French is senior counsel for the Alliance Defense Fund Center for Academic Freedom.