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In
seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?
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Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).
On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?
On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.
More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.
What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.
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I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.
Here's what I just read. Story No. 1 in (take your pick) Newsweek, Time, the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek:
Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.
The ACLU's Hina Shamsi adds: "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.
Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here. Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.
Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?
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Imagine if, during the O.J. Simpson murder trial, Judge Lance Ito ordered the district attorney's office to hand over DNA samples and logs of O.J.'s stay in county jail after his arrest. Then imagine that the prosecutors refused to do so. And that, instead of being fined for contempt of court (or thrown in jail themselves), these same prosecutors somehow got their boss to get Ito tossed off the bench. And then the D.A.'s office worked behind the scenes to replace Ito with a more, shall we say, compliant judge.
Wouldn't happen. Couldn't happen. Never in a million years. Not even in California.
Well, Cuba isn't California, and Guantanamo Bay is further still.
Continue Reading ...
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It's dangerous to try to draw parallels between procedures of the United States and any country, even those of our principal legal progenitor, England. This is surely the case with a civil-law country like France. The
problem is not that the French "don't even use a jury." In point of fact, France does use laypersons as co-fact-finders with professional judges in some felony prosecutions (as do other civil-law systems, as I write on p. 818 & n. 57
here). It's an odd complaint in any event, given that the discussion revolves around commissions that themselves will not use juries.
Perhaps more important is that what is considered a "trial" in civil-law jurisdictions is far different from the American understanding of the term (something the
New York Times reporter glossed over when she referred to a "six-day trial"). The "
procès," the French word closest to
trial, refers not only to the condensed public event that ends in conviction or acquittal but rather to the entire criminal proceeding against the defendant. In this case,
le procès lasted not for a few days in March but rather for many years: All residents of Paris' 19th arrondissement,
M. Benyettou and his six co-defendants were first arrested in 2005, and some have been detained since then. In the interim, their case no doubt worked its way through not-public proceedings before a
juge d'instruction, as is properly noted in this
post today. Only after these proceedings were completed would the public trial,
la procédure contradictoire, have taken place in robust form (see p. 838
here). Thus, even while applauding the use of the civilian system and the crafting of an evidentiary solution—aspects of the case that do deserve applause—we ought to be a bit chary of assuming that all that occurred procedurally during the long
procès deserves applause. Still more, our discussion so far seems to ignore a core problem with the French prosecution and, in my view, with many proposed Gitmo prosecutions: The substantive crime charged.
The concern remains that the material support offenses will be emulated widely and lay the foundation for a broad retreat from the traditional posture of the criminal law in this country that complicitous liability requires a mens rea of purpose, and that if a mental state of knowledge is deemed sufficient, at the very least the underlying conduct must be substantial in relation to the criminal goals of the primary parties.
The French version of this offense may be open to additional questions. Both versions deserve far greater examination than they receive when we focus, necessarily but perhaps too narrowly, on questions of procedure.
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One last point to Phil. France uses the inquisitorial system of criminal justice: no jury, greatly relaxed rules of evidence, including the absence of a hearsay rule. (There is no need to worry about confusing the jurors or animating their biases—the usual reason for having such rules in the jury system used in the United States.) Without a jury present, classified evidence poses less of a problem. And given the relaxed rules of evidence, I suspect, but don't know for sure, that these judges would be permitted to base their decisions on evidence where the degree of coercion used to obtain that evidence is "disputed" (in the words of the Military Commissions Act, though not when the evidence is obtained through torture, which is forbidden under international law, but which is also forbidden under the Military Commissions Act). Finally, French civilian judges have less independence than American civilian judges, though it is hard to know how meaningful this difference is in practice, and in the inquisitorial system, the French defense lawyer has a more muted role than in the United States. So, what are we to make of the French example? That we give terrorist defendants procedural protections that are too limited, or that we give regular criminal defendants procedural protections that are too generous?
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Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."
The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.
That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture.
Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen. (Wish I could say the same about congressional hearings.) But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.
The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)
(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)
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Phil, what puzzles me is why people are so sure that reducing procedural protections in civilian courts is superior to constructing an alternative system of military courts with lower procedural protections. We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? If no, then you can't think the French (who don't even use a jury and have never been famous for their generosity to criminal defendants) have something to teach us. If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform. As you point out, we might be more inclined to trust civilian prosecutors, judges, and juries than military prosecutors, judges, and juries, but if civilian judges do in fact relax procedural protections whenever they try a suspected terrorist, then this trust will certainly erode. Dahlia now says that she is making an empirical argument, not a catch-22 argument. However, I read the evidence she and Emily discuss as showing that there is serious disagreement among government officials about the proper level of procedural protections—how little is too little?—but from the outside it is impossible to know who is right.
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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Eric, I don’t think you’ve correctly stated the Bazelon/Lithwick standard here: It’s not that all Pentagon balking is per se evidence of crap commissions. It’s that the balking, plus the seven years of after-the-fact tinkering (the CSRT “do-overs” or the Bush-appointed Court of Military Commission Review), plus the international condemnation, plus the choose-your-own-ending playbook are evidence of crap commissions. Your characterization of our argument as “so long as the insiders balk, the commissions must be flawed” overstates the point. Our point was that when even the insiders start to revolt, it’s hard to ignore what everyone else has known all along.
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Eric, we're fast approaching the end of my French vocabulary, and I really don't want to resort to using Google's translator to keep up with this conversation. But I think you're misapplying the Catch-22 standard to the French sentencing decision announced yesterday. It is true that the French court relied on some classified evidence to reach its verdict. But this was not la justice à huis clos, or justice behind closed doors. The French system, like ours, provides for the use of classified material. The material was fully disclosed to the parties involved—prosecutors, defense attorneys, and the finder of fact (in this case, French judges). The court subsequently reached a verdict, relying in part on that secret evidence.
Although the public may never see the actual classified evidence produced in the case, I think the public may trust the verdict because of its faith in the court as an institution, and the public faith in the court's mechanisms for managing classified information in the interests of justice. Compare and contrast this with the military commissions at Gitmo—where we have no faith in the institution, no faith in its procedural mechanisms, and very little confidence that it will handle classified material in a way that furthers justice.
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Phil,
The French trial also fails the Bazelon/Lithwick/Heller standard, which I would rephrase as follows. If the government takes an action on the basis of secret evidence and the publicly visible outcome serves the government's interest (e.g., conviction), then we should infer that government officials acted wrongly. If the outcome does not serve the government's interest (e.g., acquittal), then we should infer that government officials acted properly. Applying this standard to the French trial, clearly French officials acted wrongly, so the French government shouldn't get any points. I can say this with full confidence without knowing anything about what actually happened in the French trial, which is why the Bazelon/Lithwick standard is so appealing in the first place.
I assume you would apply the Bazelon/Lithwick standard to military trials only and not civilian trials (or perhaps courts martial), but I don't think there is any reasonable basis for such a distinction. It's all the same government, after all.
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Eric, I think Joseph Heller would agree with the Catch-22 scenario you've described for the commissions at Guantanamo Bay. They truly are damned if they proceed and damned if they don't. Perhaps unintentionally, I think you've arrived at the right conclusion: The commissions are fundamentally and fatally flawed; the rule of law will prevail only if they are perpetually blocked. Specific evidence against defendants is irrelevant to the question of the tribunals' legitimacy, although I'd also argue that this evidence makes it all the more important that we find some way to try the men held at Gitmo.
Ironically, our French allies across the Atlantic might have found a way. A French court sentenced seven men to prison yesterday for aiding al-Qaida in Mesopotamia by funneling young Frenchmen to Iraq to wage war against U.S. and coalition forces there. French prosecutors brought this case in civilian court, using a combination of open and sealed (i.e., classified) evidence to prove the defendants' guilt in a six-day trial this past March. Now the defendants are headed for prison—and the French get to put points on the scoreboard in the fight against terrorism.
Maybe we can learn a thing or two from our colleagues in Paris?
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Well, Phil, after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other "high value" detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks. As the Pentagon explained:
The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.
Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.
Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court. A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's isn't the only case tainted by allegations of evidence gained under torture.)
But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.
For details on these and other allegations, you might take a look at the fascinating opinion released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution). Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings. Apparently, the "objective" advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was "tainted and unreliable, or perhaps obtained as a result of torture or coercion." Not that this concern is itself especially news. One can now read some of the e-mail exchanges from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image.
And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee. (Attorneys with my former employer Human Rights First are again blogging from Gitmo during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan. Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system. That view apparently has since changed.
If you ask me the color of this table, I will tell you it's white. You say, "it's black." I say, "no, it's white." You say, "no, it's black." I say fine, "it's black." You say no, it's white." This is the American government.
This process is serving no one's interests, most especially not those of the United States. Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously. Have courts martial Have them in the continental United States. This just has to end.
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The Associated Press reports this morning that Pentagon officials have dropped military commissions charges (for now) against Mohammed al-Qahtani—better known as Detainee 063 after the Time cover story detailing his interrogation. Prosecutors alleged that al-Qahtani was the "20th hijacker," who narrowly missed participating in the 9/11 attacks after being detained at a Florida airport. However, the prosecution stalled because of government admissions that some evidence against al-Qahtani was gleaned through coercive interrogation (read: torture), like water-boarding, and that al-Qahtani himself was harshly treated (read: tortured) at Gitmo.
And so, yet again, the decision to "take the gloves off" in prisoner interrogations comes back to haunt us. The prosecution of al-Qahtani should have been an opportunity for the government to prove its case against this defendant and al-Qaida—and to confer some legitimacy on America's war on terrorism through the legal process. Instead, the military commissions remain mired in a morass of legal problems. And this particular prosecution may never go forward, beacuse it was tainted by torture.
Correction, May 14, 2008: This post originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the post/article. The photograph has been removed.
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Today's Washington Post reports that the Bush administration has decided to charge Ahmed Khalfan Ghailani with before a military commission at Guantanamo Bay for acts committed before Sept. 11 -- to wit, his alleged participation in the bombing of the U.S. Embassy in Tanzania. According to the Defense Department, Ghailani will be charged with conspiracy, murder, attacking civilians, destruction of property in violation of the Law of War, terrorism, and material support to terrorism, among other charges. The Post reports:
Ahmed Khalfan Ghailani, who was held in secret CIA custody for more than two years before arriving at Guantanamo Bay in late 2006, was accused of plotting and carrying out the embassy bombing as part of his work for al-Qaeda and Osama bin Laden. The attack, on Aug. 7, 1998, killed at least 11 people and injured nearly 100 more.
Ghailani was also accused of later going to al-Qaeda training camps in Afghanistan, working as a bodyguard for bin Laden and forging documents for other terrorist conspiracies. At one time, he was on the FBI's 25 Most Wanted list and had a $5 million bounty on his head. He was arrested in a raid on his home in Pakistan in July 2004.
Almost all of his alleged "war crimes" occurred before the Sept. 11 attacks, and most predated the nation's fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in U.S. federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.
I'll be very interested to see how the Bush administration's lawyers argue their way around the provision of Article I that reads "No Bill of Attainder or ex post facto Law shall be passed". Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.
I'm also concerned about the deliberate decision to take this case away from federal prosecutors (who have already scored four convictions -- that's four more than Team Gitmo, in case you've lost count) in favor of the military tribunals at Guantanamo Bay. In my opinion, our default choice for the prosecution of suspected terrorists should be federal court. The Moussaoui prosecution was an anomaly; many, many terrorism prosecutions have gone forward through trial and convictions, including United States vs. Bin Laden (in absentia). The substantive and procedural due process granted by federal courts has strategic value -- it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it's crucial that evaluate our prosecutorial decisions with that strategic calculus in mind.
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Benjamin and Emily appear to agree that, as he puts it, "[t]o the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly,... the Defense Department should not put them to death." But should the prospect of execution alone be the only concern? Benjamin does proceed to discuss "clean convictions," implying the answer is "No."
At least since the days of Mapp (1961) and Wong Sun (1963) -- or, for that matter, Bram (1897) -- the question of tainted evidence has arisen 1st and foremost at the guilt/innocence phase. If it's addressed properly there, most likely there'd be no cause for reconsideration-in-mitigation at sentencing. Seems a simple enough premise. Yet it's one away from which the U.S. criminal justice system's seemed to have moved in recent years. Example of this shift: the widely shared notion that it's a victory when a tainted-for-whatever-reason capital sentence is commuted to life.