Military Commissions

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By Stephen I. Vladeck, a professor at American University Washington College of Law, and author of a recent ACS Issue Brief, "Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali."

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Last week's near-acquittal of Ahmed Ghailani, the first Guantánamo detainee transferred to (and tried by) the civilian criminal justice system, has produced predictable reactions from most observers. Those (like me) who believe that the "Article III" federal courts are competent to handle high-profile terrorism cases have generally portrayed the split verdict as further proof that military commissions are an unnecessary - let alone potentially unlawful - departure from a well-established (and properly functioning) norm. In contrast, those who have maintained all along that anyone accused of being affiliated with al Qaeda is not entitled to the protections of our everyday processes point to the exclusion of coerced testimony and the resulting near-acquittal as proof of the dangers inherent in trying terrorism suspects in civilian courts, and of the need for a forum more likely to secure convictions. Regardless of one's views, I think it's safe to say that no one will be moved off their previous position by the result in this case.

The one divergent reaction comes in an argument offered by Jack Goldsmith and Ben Wittes, in both a Washington Post op-ed and in a series of posts at their "Lawfare" blog: Rather than wrangle over the suitability of two competing prosecutorial forums that each have their own flaws, Goldsmith and Wittes argue, the government should simply detain individuals like Ghailani without trial. As they write, "Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation."

Indeed, Goldsmith and Wittes often characterize this position as a middle ground between those who favor civilian trials and those who support military commissions. Say what you will about the merits of their view (and I'll have more to say in a moment), but it's difficult to see how it is in the "middle" of anything. Wartime detention of enemy belligerents and criminal prosecution - even of alleged war criminals - serve wholly distinct goals. To offer the former as an alternative to the latter is to assume that criminal prosecution in any of these cases is not actually about establishing guilt and/or imposing punishment, but is merely a pretext for incapacitation. I'm only an amateur when it comes to the analytical underpinnings of our criminal justice system, but I, for one, am not so willing to make that assumption. Nor is the power to detain without charges a lesser form of the power to prosecute; just ask David Hicks and Salim Hamdan, both of whom have long-since finished serving the sentences imposed on them by military commissions.

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By Eugene R. Fidell, President, National Institute of Military Justice (NIMJ); and Florence Rogatz Lecturer in Law and Senior Research Scholar in Law, Yale Law School. The following post is adapted from comments Fidell made during a panel discussion he participated in at the 2010 ACS National Convention. Video of that panel discussion, "Detainees and Justice: Military Commissions versus Trials within the Federal Court System," is available here.

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This post is cross-posted at NIMJ's blog.

In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department's Website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.

I would like to offer a different take -- in part at the 50,000-foot level, but in part a worm's-eye view.

At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice-a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.