PrintDecember 1, 2009
Get-Out-of-Jail-Free Card for Terrorists?
When the ACLU loses on a security issue, America wins. And vice-versa.
On Monday, the ACLU lost when the Supreme Court overturned the Second Circuit's order to release photos of alleged detainee abuse. The ACLU had sued to get the photos despite concerns that they could be used by our enemies to endanger American soldiers.
Meanwhile, the ACLU is so delighted with the decision to try alleged 9/11 mastermind Khalid Sheik Mohammad and his confederates in New York City that it has pulled out of the case, declaring that the detainee trials will now be conducted with "the real and reliable justice that Americans deserve."
When Attorney General Eric Holder announced President Obama's decision to ditch Gitmo's military tribunal for a federal court in the Big Apple, a firestorm erupted over safety concerns and whether this is good or bad for "international relations."
Most of these discussions entirely miss the main point. Trials are about finding the facts and punishing the guilty. This decision by the president -- the opposite of what he said on the campaign trail -- will sharply increase the odds that the terrorists will beat the rap on a technicality and walk free from the courtroom just blocks from Ground Zero.
Here are some of the critical differences between a military tribunal and an ordinary U.S. criminal trial:
First: The constitutional guarantee of "a speedy trial" applies in criminal court; it does not apply in a military tribunal. Under Supreme Court cases, a delay of five years from the arrest of the defendant to the bringing of charges is clearly excessive. Another terrorist/defendant filed a motion in another trial to dismiss all charges on these grounds as soon as he came into a criminal court.
If that minor defendant beats the rap on this technicality, it would probably mean that all charges against Khalid Sheik Mohammad and his cohorts will be dismissed without trial.
Second: In criminal court, but not in a tribunal, the defense can force the government either to reveal the methods of intelligence-gathering or drop the charges. There are already several instances of people charged with espionage, caught red-handed with secret documents, who walked out of court free as a bird because the government had to protect its intelligence efforts in time of war. The same may happen here.
Third: All the defendants have confessed. But the jury will never hear those confessions because of how the confessions were obtained. In a military tribunal, those confessions would be admissible.
Even worse, in the military tribunal at Gitmo, all the defendants announced their intention to plead guilty in return for the opportunity to make statements about justified jihad in court. Obama stopped that process in its tracks by presidential order. All these defendants would have been found guilty and sentenced months ago absent the president's interference.
Fourth: Criminal defendants are entitled to a "jury of their peers." Anyone want to bet that ACLU-supported lawyers won't claim that such a jury must include some Muslims? And if so, what are the odds at least one juror will hold out for "not guilty," or at least for "no death penalty" if there is a conviction? Neither of those would apply in a tribunal, where the judge and jury is a panel of nine U.S. military officers.
Fifth: There is a unanimous (8-0) Supreme Court decision, Ex Parte Quirin (1942), holding it constitutional to try Nazi bombers who entered the U.S. via submarines before a military tribunal, not a criminal court trial subject to the Bill of Rights. This is a short decision, written in plain English, that even laymen can read and understand. It has been affirmed in recent years as good law by the current Supreme Court.
Somewhere in the bowels of the Justice Department is a memo, written by career lawyers, reciting all of these points. But the business of this Attorney General is to do what he's told, no matter whether that outcome is moral, legal, or constitutional. This is a continuation of the Marc Rich pardon under President Clinton.
The moving of this trial displays to our enemies that we are both cowardly and foolish. That display will cause additional deaths of American soldiers and civilians. The only way this dangerous decision can be stopped is if Congress votes to defund it. Otherwise, there is a chance that the defendants, who have already confessed, will walk free into the streets of New York City.
The author, a legal counsel for the American Civil Rights Union, began his career as a trial lawyer in 1970. He practiced in the U.S. Supreme Court for 33 years. He has written extensively on constitutional law. John_Armor@aya.yale.edu
