Apr 05, 2011
This Monday, Eric Holder, much to what seemed to be his own disappointment, announced that alleged 9/11 mastermind Khalid Sheikh Mohammed will be tried in a military tribunal at Guantanamo Bay. This, of course, comes as no surprise. For those of us who have embraced the use of civilian courts to try Guantanamo detainees, this is yet another defeat at the hands of the Obama administration when it comes to Guantanamo.
First, there was the failure to close Guantanamo within a year, as initially promised - a failure that has now become de facto policy. Then, there was the initial rescinding of the decision to try KSM in Manhattan, followed most recently by the president's executive order sanctioning indefinite detention of Gitmo detainees.
This latest disappointment, even if it may be attributed to Congress's ban on the transfer of detainees to the United States, will have long-term consequences for the American legal system. It restores the fundamental shift in power that took place under President Bush: on 13 November 2001, President Bush delivered a military order that put the matter of detention and trial for suspects in the "war on terror" under the jurisdiction of the Pentagon and the secretary of defence. Since then, the department of justice has tried to wrest back the right to try terrorism suspects as it had done throughout the 1990s. Small successes, like the return of Jose Padilla and al-Marri to the civilian courts, after they had been declared an enemy combatants, and larger successes, like the US supreme court decision to recognise the detainees' right to the writ of habeas corpus, seemed to be stepping-stones on the way to restoring to the American criminal justice system the right to try those who were accused of harming or conspiring to harm American citizens.
As Holder has said repeatedly, the civilian courts have prosecuted hundreds of terrorism suspects and, when found guilty, convicted them and handed down long sentences. More importantly, the civilian courts have learned to know the nature of these cases. They have developed a body of expertise on the part of the prosecutors and the defence attorneys that would take decades to replicate in military commissions. They have learned how and where federal statutes apply and where they falter in the prosecutions of alleged terrorism suspects. And they have developed a wealth of knowledge about terrorist tactics and networks.
This is not just about the number of convictions. It is about building a responsible professional specialty in matters of terrorism. And this is what the hundreds of cases have permitted. By contrast, the military commissions have convicted just six of nearly 779 individuals; the proposal now is to pilot yet another reformulation of the commissions for the 9/11 detainees - a group most people would agree one wouldn't want to experiment with.
How ironic that the development of a true professional expertise is met with a refusal to let the courts practise what they are charged with under the US Constitution. Could it be that expertise in these matters is just what Congress doesn't want? Could it be that "fair trials" and "just verdicts", not to mention transparent trials and public accountability for the families of 9/11, are not what matter most? Could it, instead, be that thwarting the department of justice and obstructing the clear preferences of Attorney General Holder and the Obama administration are the politicians' top priorities, even in the "war on terror"?
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