Unable to start a single trial in seven fitful years, much less complete one, President Bush’s troubled military commissions may be lumbering toward oblivion. The initiative enthuses neither of his potential successors, both of whom agitate nonstop about “our reputation in the international community.” How ironic, then, that in their last gasp, commissions may prove themselves far preferable to the 1990s approach of treating our terrorist enemies like ordinary criminals.
Once again, all eyes are fixed on Guantanamo Bay. Thursday marked the first step toward what may (or may not) finally result in the first commission trial. Khalid Sheikh Mohammed (KSM) and four other al-Qaeda honchos appeared in a military courtroom on the base to be arraigned on charges of carrying out the 9/11 atrocities. These men are the most significant enemy combatants. If convicted by the military court, they could face the death penalty.
THE USUAL MISINFORMATION
This is Gitmo. Therefore, as night follows day, misinformation abounds. First, much of the press coverage portrays the arraignment as if it were the start of the trial. It’s not. Just as in a civilian criminal case, a military arraignment is a preliminary proceeding. In it, the court ensures that the accused understands both the charges against him and his trial rights, including, importantly, the right to counsel. If we’re lucky, the actual trial will start sometime this fall.
Second, the main event in an arraignment is the defendant’s formal entry of a plea to the charges — “guilty” or “not guilty.” Yet, the media leave us in the dark about that detail. It went unreported in breathless on-sight accounts from the New York Times, the Washington Post and the Associated Press. Instead, reporters give us dark reminders that KSM was held for years in secret CIA prisons — secret, at least, until the press exposed their existence. (Have I mentioned that he killed almost 3,000 Americans on one day?) The “black sites” may be an interesting subject, but they’re irrelevant to an arraignment. (Fear not, MSNBC: There will be plenty of time between now and the trial for jihadists and their sympathizers to contend that abusive interrogations and harrowing incarcerations should result in the suppression of evidence or the dismissal of charges).
I wasn’t there, but we can safely assume there were no guilty pleas — the combatants, who apparently read the newspapers, are taking the tack that the commissions are illegitimate. Whether they actually entered formal not guilty pleas is unclear from the reporting, which focused instead on KSM’s courtroom antics. (We’ll come to those momentarily). Procedurally, the matter is of little moment: If getting straight answers from defendants is a problem, as it appeared to be in Thursday’s occasionally chaotic session, judges typically order that pleas of not guilty be entered for the record.
Third, there’s Brigadier General Thomas Hartmann. As a very visible top official in the so-called “appointing authority” (or “convening authority”), the theoretically impartial Pentagon component that oversees the commissions process, he is the object of much media attention, mainly due to his apparent partiality. When last we left Gen. Hartmann, he was being disqualified from another commission case because a military judge credited testimony that he had exerted undue pressure on the military prosecutors in hope of securing impressive convictions.
Following Thursday’s arraignment, the AP paraphrased Hartmann as having explained that “[m]ilitary commissions have been conducted since George Washington used them after the end of the Revolutionary War, but this is the first time the U.S. has used them during an ongoing conflict.” If he truly said that, it’s grossly inaccurate.
In fact, Gen. Washington had the British spy, Major John André, tried by a commission and executed by hanging over a year before Yorktown. Commissions, moreover, were used throughout the Mexican War and the Civil War. And most notable (because the Bush administration relied on it so heavily in urging the continuing validity of commissions) is the 1942 case called Ex Parte Quirin. In Quirin, eight Nazi saboteurs were captured in the United States plotting terrorist attacks. FDR promptly ordered them tried by commission and, within a few weeks after capture, six of them were electrocuted . . . fully three years before the end of World War II.
WE’VE CHANGED . . . AND NOT FOR THE BETTER
Though Hartmann’s (or at least the AP’s) history is off the mark, his policy concern is right on target. The big difference between today and 1942 (to say nothing of 1780) lies in the criminals’ rights revolution that began in the 1960s. Under our evolved due-process standards, modern discovery obligations are simply immense — a stark change from the sparse disclosure requirements that previously obtained. Why is that crucial? Because of what it portends about educating the enemy while the war rages.
We are now a litigation-obsessed society. That’s the prism through which we assess a commission process that, historically, has never been legally exacting. In the wars of prior eras, Americans were not exercised over the consignment of war criminals to comparatively barebones military trials. There was no fretting over the fact that these were unilateral executive-branch affairs, conducted outside the scrutiny of civilian judges. As a nation, we thought the point was to defeat the enemy, not to make sure he got enough due process to prevent Eurocrats and law professors from sniffling all over our reputation in the international community.
Today, to borrow the apt phrase of Harvard’s Jack Goldsmith, we have attempted to “judicialize” warfare, as if there were no distinction between an al-Qaeda mass-murderer and a common tax cheat. Consequently, our notion of a fair trial for even alien war criminals is now colored by the colossal disclosure obligations designed to protect Americans in run-of-the-mill cases.
That means the rationale for military commissions is no longer just the commonsense tradition that military trials are entirely proper for enemy operatives who violate the laws of war. Now, it includes the practical and more compelling concern that compliance with today’s inflated standards of civilian due process would require providing the enemy with mounds of national-defense information — vital intelligence, plus our methods and sources for obtaining it. We keep such information top-secret (i.e., hidden from our enemies) precisely because it is essential to protecting American lives.
What to do about this problem? We could withhold sensitive information from the combatants and close the courtroom to the media when it is introduced at trial. But then our legal elites would accuse the government of running a nefarious star chamber. We could delay trials until radical Islam has been sufficiently quelled that we’re less worried about what it learns. But that could take many years: Our legal elites would accuse the government of violating their newfangled human right against indefinite detention for enemy combatants.
Thus the dilemma which results directly from today’s legal culture: Do we come down on the side of protecting Americans (heretofore thought the first responsibility of government) or the side of enhanced due process for war criminals (heretofore never thought to be very high on our list of imperatives)?
ENTER THE RIGHT OF SELF-REPRESENTATION
If the answer is not obvious enough, KSM and his cohorts have now sharpened the question for us — asserting a “right” that our legal elites, who’d like to go back to the 1990s approach of defendant-friendly civilian trials, will be hard-pressed to defend.
At least four of the combatants are demanding that they be permitted to represent themselves at their commission trial. During his arraignment rants, when not chanting verses from the Koran and voicing his desire to become a martyr (a wish we should fulfill, and the sooner the better), KSM railed against his American lawyers. He called them agents of the Bush administration (suggesting, yet again, that he knows less about American society than he thinks he does). He seemed to goad his confederates, most of whom also chimed in that they did not trust their counsel and preferred to go it alone.
In a civilian trial, this would be a gigantic problem. The Supreme Court has held that any accused who is fully vested with the protections of our Constitution has a right to self-representation. A trial judge can discourage a defendant from acting as his own lawyer; the judge can make “stand-by” counsel available to advise such a defendant about the intricacies of the process; but a judge cannot force a lawyer on a defendant who insists on acting as his own attorney.
Here’s the problem: the constitutional right to effective assistance of counsel is construed as a right to review the discovery — all of it. If you are deemed vested with the full flower of the Sixth Amendment, you get access to the relevant information, no matter how sensitive it may be.
So we give sensitive information to our enemies? Well, in the normal civilian case, we finesse that problem by assigning the defendant a lawyer who qualifies for a security clearance. We trust that lawyer to protect the defendant’s interests without revealing the nation’s secrets. That won’t do, however, if the defendant insists on being his own lawyer. The government may not frustrate your right to self-representation, or to a trial that comports with Fifth Amendment due process, by relying on sensitive information which it offers to disclose to a qualified lawyer but refuses to disclose to you.
By contrast, alien enemy combatants detained by the military outside the United States are not entitled to American constitutional rights. Yes, we owe them due process, but, despite what the legal commentariat spouts, “due process” is not shorthand for “the rights accorded to defendants in the civilian criminal justice system.” It means just what is says: the “process” that is “due” under the circumstances. We have never owed hostile captives in war crimes tribunals the same quantum of protection that must be extended to our own citizens prosecuted in our own civilian courts by officials of our own government. When hostile aliens threaten the nation, we are permitted to draw sensible distinctions: to conduct proceedings that are fair but that pay deference to our national self-defense, which restrains us from edifying the enemy while the war rages.
Unlike in the civilian criminal-justice system, we do not have to permit enemy combatants to represent themselves in military commissions. And if we decide to give them that privilege, we can qualify it. We don’t have to let them extort us into sharing national-defense information with al-Qaeda. We can tell KSM and his fellow barbarians: “Look, we are willing to share sensitive information with a qualified lawyer who is duty-bound to protect your interests. We can’t make you take that lawyer, but that lawyer is your only way of accessing the sensitive information. If you don’t want the lawyer, fine, but then you don’t get the access — your choice.”
That is not perfect. But it is fair. It is due process: allowing us to protect Americans without compromising the integrity of the trial.
We can do it in a military commission. And Congress could direct it in a hybrid system — a national-security court for handling international terrorism cases in the future — which I believe our lawmakers should create.
In a civilian trial, we can’t do it. We’d have to share the nation’s secrets with Khalid Sheikh Mohammed … and Ayman Zawahiri, Osama bin Laden, and any other enemy leaders we may capture in the years ahead.
That’s something Sen. McCain and Sen. Obama might bear in mind as they decry Gitmo and promise to shut it down.