The Guantanamo Bay Detention Facility (Gitmo) was scheduled to close on the 20th of this month. For myriad reasons — some political, some practical — it is now clear that the facility will remain open for some time. Many detainees still, after almost eight years, have an ambiguous legal status. It is now time for Congress to take a hard look at the proper venue for trying detainees, and to embrace a bipartisan, practical solution that best balances the delicate issues of promoting national security and supporting the rule of law. A legislatively enacted national-security court would be such a solution.
The administration needs an additional means for trying the detainees, rather than simply employing either a civilian federal court or a military commission. Neither venue is ideally suited for the hybrid fighters we are detaining in the war on al-Qaeda. The trial of Dr. Aafia Siddiqui, which began today in New York City, should encourage policymakers to embrace a third way — a hybrid of the military commissions and the federal courts.
Siddiqui is an MIT- and Brandeis-educated Pakistani native accused of conducting financial transactions with al-Qaeda (a Suspicious Activity Report was filed several years ago), conspiring with al-Qaeda, and actually shooting at an FBI agent (and soldiers) overseas in a theater of military operations. Although prosecutors have made clear that the charges against her will not even mention any affiliation with al-Qaeda — she will simply be charged with attempted murder, assault, and other criminal violations — when the accused was captured, her handbag contained various bomb-making guides, as well as notes about a mass-casualty attack on various NYC landmarks. And she has been long suspected of maintaining high-level al-Qaeda connections.
With a military commission the only other option, the decision was made to try Siddiqui in civilian court. Her able defense counsel, Linda Moreno, has already said that the accused will plead not guilty. Moreno, opting not to present a theory of self defense or accidental weapon discharge, will instead argue in court that Siddiqui never even fired a weapon. Even though there were many witnesses to the act itself, Moreno will rely on traditional chain-of-custody missteps and potentially the lack of fingerprints and other forensic evidence from the gun itself. Of course, in a combat theater, such “fingerprinting” does not ordinarily occur, and therefore the defense will seek to raise questions as to the accuracy of the allegations. On Wednesday, Siddiqui also contested the jurisdiction of the court and declared that she fired her lawyers and rejected all of the jurors being considered during the voir dire process (jury selection). To say the least, this appears to be an unnecessarily awkward means of trying what is essentially a national-security or “war crime”–like case.
The Siddiqui case highlights some of the potential problems we face when pursuing criminal cases against alleged al-Qaeda fighters. Further, it should serve as a catalyst for policymakers to provide additional options for trying those detained at Gitmo, Bagram, and elsewhere. A hybrid court system would offer a necessary, long-term alternative to the two legal paradigms that are now preventing the United States from putting Gitmo behind us.
– Glenn Sulmasy is the author of The National Security Court System: A Natural Evolution of Justice in an Age of Terror.