Trial by Fire: How Military Commissions Work and Why They Fail

February 14, 2008

At long last, one way or another we’re about to learn a great deal about military commissions. The charges prosecutors filed Monday against Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot proceed credibly to trial in anything less than a viable court system. The evidentiary questions they pose are too tricky, the charges are too severe, the interrogation tactics are too ugly, and with 3,000 people dead and the government seeking death, the stakes are too high. More than six years after the Bush administration first introduced military commissions, finally we will learn whether they offer a plausible means of trying terrorists or whether the system really is the total flop it has seemed to be so far.

Flop is actually a generous word for the commissions’ performance to date. Bush announced them shortly after the attacks to great consternation from civil libertarians and human rights groups, who feared they would menace liberty. But this system hasn’t even been competent enough to put people on trial. Despite all the sound and fury, it has produced only a single completed proceeding, a guilty plea from an Australian, David Hicks, who was insignificant enough to be sent home a few months later, and was released from prison in December.

The commissions haven’t even managed to get convictions from people who were positively begging for them. At a hearing of his abortive commission trial in 2004, Ali Hamza Ahmed Suleiman Al Bahlul announced: “I testify that the American government is under no pressure. … I am from Al Qaeda.” Ghassan Abdullah Al Sharbi went further. He freely admitted to the very serious allegations against him: conspiracy to murder and attack civilians and to commit terrorist acts. “I’m going to make it short and easy for you guys. I’m going to say what I did without denying anything. I’m proud of what I did and there isn’t any reason of fighting what I did,” he told the court. “I’m willing to pay the price no matter how much you sentence me even if I spend hundreds of years in jail. In fact, it’s going to be an honor–a medal of honor to me.” Both men remain at Guantanamo, and notwithstanding their efforts at self-incrimination, neither has seen a guilty verdict.

And it is this system that we are now asking to deal with a case that is as knotty and difficult as a case can possibly be. The defendants are truly the worst of the worst. They have been subjected to, to use the Bush administrations terms, “enhanced” interrogation techniques, including, in one confirmed instance, waterboarding, and we can therefore expect the provenance of every shred of evidence to come under sustained assault from any competent defense counsel. And this litigation will take place in an environment in which almost nothing has been settled procedurally and in which virtually all questions are therefore matters of first impression.

It’s a sink-or-swim situation for a system that has shown little aptitude for swimming. And for better or worse, it will clarify a lot.

If, by some miracle, the commissions swim, they will fundamentally alter the debate over terrorist trials. If the military can conduct an open proceeding that provides a reasonable opportunity to litigate difficult questions regarding torture by genuinely testing the government’s evidence that may have been derived (directly or indirectly) from such techniques, it might just succeed in using this trial to create legitimacy for its new institution of international justice. To be sure, the controversy over military commissions will not go away entirely; many people in the United States and its allied countries are opposed to them in principle. But a successful, fair trial of this magnitude would dissipate the controversy considerably. Most people, after all, don’t know how trials under the Military Commissions Act differ from those under the Federal Rules of Criminal Procedure or the Uniform Code of Military Justice. They know only that a lot of other people believe these trials will offer kangaroo justice. To the extent that the commissions turn out to be more balanced than that, public anxiety will ease and the administration may be able to normalize them.

If the trials fail, however, the commissions will probably never recover. Trying Al Qaeda’s top dogs is their whole purpose, after all. If they can’t handle this kind of case, and handle it better than any existing alternative, what good are they? There are two ways for the commissions to fail. If they make conviction too easy for the government, they will confirm the worst fears of human rights groups, liberals, and America’s European allies. They will fail, in other words, by succeeding. The second possibility is that–with every imaginable issue up for litigation in this case–they will collapse under the sheer weight of the task before them, and never really get off the ground. Either failure will send policymakers back to the drawing board, forcing them to decide the same question the Bush administration faced six years ago: whether to adapt federal court trials to the challenges of international terrorism or whether to try something new.

It is also possible that the commissions will neither sink nor swim but tread water–that is, produce a marginally credible trial but one with a lot of rough edges that still attract international and domestic suspicion and criticism. This may be the most likely outcome. And if it comes to pass, it will suggest that the commissions may be a work in progress–the kernel of a good idea implemented with inadequate imagination and respect for the development of the American legal system since the military last used commissions in the wake of World War II. The good idea is that terrorist cases require some non-trivial departures from conventional federal court norms. The inadequate imagination lay in the administration’s too-strong reliance on legal models developed for warfare, rather than developed for the peculiar task of fighting terrorism. The trial of KSM and his co-defendants may end up working at some level and still highlight the need for further development of a trial system adapted for this purpose, not imported from past wars.

Among the Bush administration’s great failures in the legal war on terrorism, taking six years to charge the September 11 conspirators and having even at that late date only an untested trial regime ready to handle the case ranks high indeed. In those years, the world has grown complacent about the threat the defendants’ colleagues at large still pose. Its focus has shifted from what they did to the United States before their capture to what the United States did to them after their capture. This trial would have been difficult enough if it was merely tasked with delivering justice for September 11. But now it has to do so much more: finish building, and start justifying, a new legal regime for terrorist trials. If it fails in either respect, it will probably bury, once and for all, the project of creating one.