Politics & Policy


Will Pentagon blunders mean the end of military trials for terrorists?

The United States of America does not do show-trials.

I don’t know how many times I must have written and said those words during the debates over the use of waterboarding as an interrogation tactic. It is, I believe, one of the bright lines that separate us from the loathsome regimes to which the Left cavalierly compares us — the Soviets and their Gulag, the North Vietnamese who tortured John McCain and his brethren, Saddam’s Iraq, Iran’s mullahs, and history’s remaining roll call of sadists.

The tired torture debate? Waterboarding: Is it or isn’t it? Forget it. That’s not the point now. The point is: When the United States has used harsh tactics that creep close to the elusive line of torture, the purpose has been to gather intelligence, to save lives. It was not to coerce confessions for use at trial. Confessions obtained by such methods have no place in a trial. Period.

Indeed, the administration has argued, again and again, that rough tactics have not been systematically used. That implies (one hopes) that the tactics have been rarely used and only against high-value detainees whom we had reason to suspect were aware of ongoing mass-murder plots. The question whether we should ever use such tactics provokes vigorous debate. The question of who might be subjected to such tactics should not: We are talking only about terrorists we already know are terrorists. They should never be used in order to prove that someone is a terrorist.

These bright lines, it seems, have blurred, at least for some wayward officials. That could produce the death knell of the military-commission system — ironically, at the very moment when, despite the slanders it has endured for seven years, military justice has lived up to its honorable traditions.


About a week ago, a military judge disqualified a top officer in the defense department’s “Appointing Authority” (sometimes called the “Convening Authority”) — the body designated by the president and the secretary of defense to oversee military tribunals at Guantanamo Bay. The ruling was issued in the case of Salim Hamdan.

Hamdan, once a driver and bodyguard for Osama bin Laden, is the combatant whose referral for a military-commission trial became grist for the Supreme Court’s controversial 2006 Hamdan decision and, subsequently, the 2006 Military Commissions Act (MCA), by which Congress endorsed military trials.

The Appointing Authority is the foundation on which the commission-project rests. Much like a grand jury (the body designed to protect citizens from sham cases brought by overzealous civilian prosecutors), it determines which cases proposed by prosecutors have sufficient merit to be referred for commission trials. It appoints the military judges who preside over commissions. It allocates resources not only to the prosecution but to military defense counsel, so the latter can carry out their sworn duty to “defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused.”

In executing these responsibilities, the Appointing Authority must be above reproach. It is no easy thing. The conduct of war is a political exercise. The performance of what is essentially a judicial task, ensuring justice for those making war on us, sits uneasily with the imperative of defeating our enemies. But we ask our military to do many things that are not easy. If this particular task is botched, the system will lack integrity. Its outcomes will be derided as those of a kangaroo court. The war effort, dependent on support from the American people and our allies, will be wounded.

There have been a slew of frivolous, overheated, and downright libelous complaints about Gitmo. This is not one of them. The forceful criticism of military tribunals — voiced by not only knee-jerk human-rights activists but national-security experts whose priority is defeating radical Islam — is that they are an almost exclusively executive-branch production. To be sure, they are not without a meaningful judicial check, but that check is severely restricted in time.

While this critique has persuasive force, it should not carry the day (emphasis on should not). Our enemies are not entitled to more than the limited protections that have been prescribed for commissions. Those limited protections, though, must be extended in good faith. They can’t be a sham. In a non-judicial system, that means the Appointing Authority must be an honest broker.

In the civilian-justice system, an apprehended defendant is instantly presented before a court — a peer government authority that is independent of the executive branch — and advised of his rights. From that moment on, his is a judicial process: The court presides over all preliminary stages, the trial, sentencing, appeals, and any collateral (habeas corpus) challenges to the proceedings or the jail conditions. The judiciary’s independence keeps the prosecution honest. It ensures procedural integrity and thus guarantees that any resulting convictions and sentences will be accepted by the public as valid.

That is civilian due process: the process that is due to Americans who are accused of crimes. The same process is not due to unlawful enemy combatants captured waging a terrorist war against the United States. That is why it has always been bogus to claim that Gitmo combatants are being denied “due process” because we decline to grant them full-fledged civilian rights. Enemy soldiers have never been due the same judicial process as American civilians — and unlawful combatants (i.e., those who barbarically flout the laws of war) are entitled to even fewer protections than honorable enemy soldiers.

Nevertheless, conceding that the demands of due process for enemy prisoners are less weighty is a far cry from saying that whatever process is accorded may be illusory.

In the commission system, the civilian judicial check awaits the end of the military process. Before that denouement, all post-capture proceedings against a wartime combatant are unilaterally controlled by the president through the defense department: detention, the filing of war-crimes charges, preliminary hearings, trial, sentencing, and the first rounds of appeal. There is to be no judicial interference. The civilian judicial authority (here, the U.S. Court of Appeals for the D.C. Circuit and, ultimately, the Supreme Court) is permitted under the MCA to entertain claims that the military proceedings violated federal law, but only after those proceedings have run their course.

Legally, that is appropriate. It is more process than our enemies are due — indeed, prior to this war, military prisoners have never had systematic access to the civilian courts. But whether the system is adequate and whether it is executed with a rectitude that provides confidence in its outcomes are two very different matters.


There is now real reason to question the manner in which the system is being executed. In the military proceedings against Hamdan, Air Force Colonel Morris Davis has testified that the Appointing Authority has not been an honest broker. Those claims have been credited by Navy Captain Keith Allred, the military judge presiding over Hamdan’s case.

Col. Davis is no linguine spine. He is the former chief prosecutor of the military commission system. By all accounts, he was duly aggressive. He despises jihadists every bit as much as any of us. He thinks Salim Hamdan is as guilty as the day is long. He believes Hamdan should be tried and convicted for war crimes. But Col. Davis also understands how the system is supposed to work, and how vital it is to the war effort that it be made to work properly.

Summoned as a witness by the Hamdan’s counsel, he explained to the court that the Appointing Authority (including Gordon England, the deputy secretary of defense) exerted pressure on the prosecutor’s office to bring cases based on strategic political calculations. He was pushed, he testified, to rush cases so that progress could be shown in advance of elections. He was pressed to prioritize cases based not on the state of the evidence but on their potential to “capture the imagination of the American people” or show “blood on the hands of the accused.”

This is bad, but salvageable. There is, at this point, no reason to fear that the few commission cases brought thus far are unfounded. Again, Davis stressed that he believes Hamdan is guilty. Moreover, none of the cases has gotten to trial yet (after seven years). Obviously, whatever pressure there may have been, Davis did not permit cases to be brought until he was ethically convinced of the combatants’ guilt.

It is Davis’s other allegation that is most troubling. He contends that the Appointing Authority, and in particular, Brigadier General Thomas Hartmann, pressured him to charge cases based on evidence derived from waterboarding (and perhaps other highly coercive tactics).

Now, let me be clear about something: I disagree with Col. Davis’s publicly stated rationale for objecting to waterboarding evidence. He apparently subscribes to the irrational view — which is quite common among military lawyers — that waterboarding and other forms of coercion are inherently unreliable, and that this unreliability renders use of any resulting evidence unethical. I believe they are allowing their distaste to cloud their judgment, and thus coming to the right result for the wrong reasons.

Understandably, our military is viscerally hostile to harsh interrogation tactics. It reasons that if we use rough stuff, our forces will be subjected to rough stuff, and therefore getting coercive with detainees will result in coercion against Americans. But this notion of reciprocity is delusional. Jihadists will torture and kill our soldiers no matter how solicitous we are. On the other hand, how we treat unlawful combatant terrorists has no bearing on how we would treat honorable combatants (and how we should expect our soldiers to be treated) in a conventional war in which the Geneva Conventions clearly applied to all fighting forces.

In any event, this right-minded misconception leads to an error of logic: the insistence that rough tactics never work, that they produce unreliable information. In reality, waterboarding and other coercive measures are only marginally less reliable than other coercions (and enticements) routinely used by prosecutors, such as the dropping of charges, reduction of jail time, or even payment of money and other benefits in exchange for testimony. When those tactics are used, as in a torture scenario, the subject is motivated to tell the interrogator what he wants to hear. Defense lawyers thus inevitably claim evidence derived from such tactics can’t be trusted.

The time-honored response is: Don’t trust, verify. Where the information can be convincingly corroborated, it is trustworthy; where it can’t, it gets rejected. And guess what? Most of the time, it proves trustworthy.

Take a concrete example. I suspect you robbed a bank. I arrange to have you waterboarded. Under this extreme coercion, you tell the interrogator that you robbed the bank, stashed the money in a bag, and buried it under the bridge. If I then send investigators to the bridge, and they dig up the bag which has your fingerprints on it and the money in it, I have verified your account.

Now, you can tell me I should be condemned for using an odious method to get at the truth. But you can’t tell me I didn’t get at the truth. And that is the inconvenient fact about coercion: It works. Those who say it never works are substituting piety for reason because they want to avoid the debate they cannot win: Namely, are there circumstances in which we should resort to the odious method in order to avoid a greater evil?

Of course there are. Those circumstances, however, must be dire: an exigent threat involving a potentially massive loss of life and an actor we know with a high degree of certainty is complicit and has knowledge that could enable us to prevent the attack.

I could be right, I could be wrong — we could debate it ad infinitum (as it seems we have done). But one thing is sure: Assuming tactics like waterboarding are ever permissible, the prerequisite dire straits do not include ensuring that a terrorist is convicted at his trial.

If we are detaining such a terrorist, it is because we already know he is a terrorist. But, you might ask, what if we know it only due to information that cannot be exposed in court? What if proving guilt would compromise vital intelligence methods and sources? Well, in that case, the laws of war permit us to hold the terrorist without trial until the conclusion of hostilities. Maybe we can’t convict him, but we can hold him until the danger passes — and, meantime, perhaps develop a provable case by the standard techniques of investigation.

No matter what one thinks of extreme interrogation measures, they are not a substitute for investigation and proof. There is no exigency with a trial — as we’ve seen, it can take years to get a case to that point. But however long it takes, what we are willing to tolerate in order to get life-saving intelligence in a true crisis is not the standard we must demand for evidence to be admissible in court.

A coerced confession may be perfectly reliable. But a trial based on it is not a trial. It’s a show-trial. The United States of America does not do show trials. Prosecutors should refrain from offering such evidence at trials because doing so would violate a fundamental tenet of Western civilization that a person may never be compelled to be a witness against himself.

To be clear, I am not talking about extending the Constitution’s Fifth Amendment to alien unlawful combatants — I am not suggesting that the Gitmo detainees must be given Miranda warnings (as the Supreme Court holds are required to satisfy the Fifth Amendment) or that confessions based on mild forms of duress must be suppressed (as they would be in the civilian system). But the core of the Fifth Amendment reflects a bedrock Anglo-American value. If that value is not vindicated, a trial is no longer a trial. We don’t have to try these detainees, but if we are going to do it, they must be trials worthy of the name.


It is worth underscoring here that no injustice has been done precisely because the military justice system is an honorable one — just as those of us who have defended the president’s commission initiative have always maintained. A military prosecutor who believes in the process but was troubled by its implementation came forward, as it was his duty to do. A military judge, hearing and crediting the testimony, took curative action as it was his duty to do. That should fill us with pride and confidence: Even in the case of the most despicable enemies, our armed forces perform with integrity and professionalism.

Still, this episode bodes ill for the future of the commissions — which the impending election renders unlikely in any event. The recklessness of the defense department boggles the mind. Suggesting the introduction of evidence derived from extreme coercion not only bespeaks ignorance about the limited rationale for permitting extreme coercion, it virtually begs for acquittals — since the resulting trials would be about our interrogation practices rather than the jihadists’ atrocities. Even more tactically inane, it would force the courts to resolve the vexing question whether waterboarding is torture — a question Congress has ducked and the administration has resisted because (a) they realize there might be an emergency calling for its use, and (b) our interrogators have waterboarded three al-Qaeda prisoners.

Most foolish of all, don’t these guys understand that the Supreme Court — right now — is considering whether Gitmo detainees should be vested with American constitutional rights? Cases are argued on the briefs, but the justices have been known to read the newspapers. Recent coverage indicates the Pentagon brass does not perceive that infecting a trial with confessions derived from waterboarding is a problem. What should we imagine Justice Kennedy, to take the most salient example, is going to think about that?

Forget about what the law says — if the law is the issue, alien enemies held outside the U.S. in wartime have no claim on American constitutional rights. As a practical matter, giving foreign jihadists constitutional rights means judicial oversight. Digesting these stories, the Supreme Court is apt to conclude that’s just what Gitmo needs — and if the Pentagon doesn’t think so, they haven’t been following the Supreme Court for, oh, the last 40 years or so. Five current justices have been only too happy to insert themselves into what used to be the military domain; why would we give them an excuse to do it again?

Had it been handled right, the military commission system could have worked. Instead, it’s been handled atrociously. If Congress doesn’t act, and soon, to devise a new legal system for processing terrorist detentions and trials, the courts will impose one — and it will, in short order, become prosecution in the civilian criminal-justice system.

How well would that serve our national-security interests? Just ask Osama bin Laden. Next month he celebrates an anniversary: ten years (and thousands of murders) since his indictment.

Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.


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