Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
There is now every indication that President Obama is going to pull the plug on civilian trials for those behind 9/11, which will at least make his policy consistent since he was denying civilian trials to the rest of the detainees at Gitmo. But I've been thinking about this and I think there's a way this could be made to work that might satisfy both sides (something that Obama is always looking to do). Let me explain.
First, let's recognize that the question of civilian trials vs. military tribunals is really about due process. Let's also recognize that due process can be achieved in either a civilian or military setting. The problem with the military tribunals that were set up at Gitmo, both before and after the passage of the Military Commissions Act, is that they did not provide even minimal guarantees of due process.
That's why so many of the military officers who were assigned to prosecute -- not defend, but prosecute -- the detainees at Gitmo resigned and went public with their criticisms of the process. A full half dozen JAG officers walked away and declared the proceedings there to be manifestly unfair and designed solely to make sure that all detainees, including the innocent ones, would be found guilty. Some of them even resigned their commissions over it.
But that doesn't mean that military courts always lack due process; they don't. A court martial proceeding has very good due process protections and we have traditionally used such proceedings to try those accused of war crimes, both our own soldiers and those from other nations, including non-uniformed saboteurs and terrorists. There is no reason why that could not be done again.
I think there are two ways that Obama could pull the plug on civilian trials and have KSM and all the other detainees tried in military courts with all the necessary protections to make them comply with the constitution. The first would be to use traditional courts martial for it, as I said above.
Alternatively, he could ask Congress to redo the Military Commission Act and establish military tribunals that contain adequate due process guarantees. And they should bring in all of the JAG officers who objected to the previous tribunals -- Charles Swift, Darrell Vandeveld, Stephen Abraham, Morris Davis and the others -- and have them design the structure and rules for the new tribunals.
Every detainee would get assigned a JAG lawyer to defend them. If they want to have civilian counsel as well, or instead, they can obviously do that (but those attorneys would need to have a security clearance). Evidence obtained under coercion, abuse or torture would have to be inadmissible. And the defense counsel must have full access to the evidence to be used (thus the need for security clearances).
The JAG corps has acquitted itself quite well over the last few years and proven that it is staffed by professional attorneys who are dedicated to the rule of law. It's the civilian leadership that has failed to follow their lead that has led to the star chambers that were set up. I have full faith that a military court presided over by military judges and with both prosecutors and defense attorneys being JAG officers can guarantee due process.
I would prefer to do this under the usual guarantees of due process found in a court martial. It will send a powerful message to the rest of the world if we decide the fate of the detainees at Gitmo with the same protections we afford our own soldiers when they are accused of a crime.
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Can we hold the trials at Fort Hamilton in Brooklyn, or if they're tight on space, reopen Fort Wadsworth on Staten Island? I think it would be a fitting gesture at the obstructionists who drove this mishigas.
Posted by: Abby Normal | March 12, 2010 9:53 AM
What goes unrecognized* in many of the political debates surrounding this issue is that President Bush's unconstitutional actions left a giant mess for President Obama and possibly even future Presidents with little politically popular options available to dig us out of Mr. Bush's hole. Mr. Bush's torture policy seems to have resulted in a complete inability to try the remaining Bush-era detainees since our legacy would have us releasing such detainees to punish the government for their abuses. Releasing detainees we are confident are terrorists because they were tortured is also an incredibly difficult political option where I don't believe the President has the political capital necessary though he might a couple of years from now (especially if we capture al Qaeda's two leaders).
I empathize with the President's predicament. This issue is another example arguing our voting criteria should include both integrity and fealty to the Constitution as primary hurdles prior to weighing candidates' other positions or party affiliations**.
*I consider Ed's post here outside the realm of articles I'm referring to and am therefore not criticizing his compelling argument.
**I'm cognizant of the fact that we can preclude most Republicans from meeting my primary bar, let's hope that changes soon though it appears to be getting worse.
Posted by: Michael Heath | March 12, 2010 9:55 AM
Can someone explain to me what the 'legitmate' rationale is for moving the case from civilian court to military court?
Posted by: rmp | March 12, 2010 10:13 AM
Ed stated:
What if this results in a lack of evidence to even indict, and certainly convict? What then? If we reconvert to an authentic standard of due process; are we OK releasing detainees we can be reasonably sure* are terrorists? That seems our only recourse if we once again become a nation of laws on this issue. Currently we appear to just be holding them indefinitely; in fact AG Holder has already noted that even if KSM wins his pending trial we're not letting him go.
Ed - are you implying a distinct separateness in your argument between due process for a trial and indefinitely holding detainees we know are terrorists whose rights we've abused? That is what the Obama Administration is doing. It'd be great to get a short response on this aspect since it's an issue if we've abused a detainee.
*Please don't get pedantic on me regarding our not knowing such if due process hasn't been applied. I'm referring to cases where we are sure, e.g., KSM, not those where only due process would result in such confidence.
Posted by: Michael Heath | March 12, 2010 10:18 AM
Uh oh. Ed, are you trying to give Liz Cheney a stroke?!
Posted by: James Sweet | March 12, 2010 10:24 AM
He probably wasn't, but can we hope for it as a side effect?
Posted by: Henry Neufeld | March 12, 2010 10:31 AM
rmp @ 3:
I haven't studied this issue carefully so I'm not sure either if there is a cogent argument for military court. What I have repeatedly heard from conservatives are two arguments, both of which are incoherent:
1) Terrorists don't deserve our granting them U.S. constitutional rights. This is fatally defective though unsurprising. For some reason conservatives believe rights are what their interpretation of the Bible says and what they can read into the Constitution in light of their being delusional and therefore missing whole swaths of text (9th Amendment, 14th Amendment, the 4th Amendment, etc.). Conservatives also argue their rights include the obligation that judges rule based on what conservatives happen to support during trial, i.e., "the will of the people" argument.
A proper reading of the Constitution reveals that all humans have rights which are not created and extended by governments where the Constitution merely delineates the government's obligations given those reserved rights. In this case the courts would correctly concede the detainees have some rights and their obligation is to insure that due process is equally applied per our Constitution.
2) They seem to believe that a military trial would either allow evidence discovered by abusing prisoners and/or this sort of court wouldn't release prisoners where the court finds have been abused.
Given that AG Holder has already communicated the Justice Dept. will not ordering the release of detainees regardless of a criminal court ruling, it seems the latter argument is not a determining factor. However this argument continues months after Mr. Holder noted such. I don't have a position on the former argument.
Posted by: Michael Heath | March 12, 2010 10:35 AM
Doesn't sound too bad. Although the pessimistic side of me says that this still won't satisfy some - there are those that appear to be pretty much arguing that terrorists don't deserve due process at all. They won't care whether they are tried in a civilian or in a military court, they just want the bad guys locked up and the key thrown away.
@Michael Heath: if they didn't have enough evidence of a captive's guilt before they started torturing him, then his interrogators deserve to be locked up for life, not the captive.
Posted by: Deen | March 12, 2010 10:40 AM
KSM is actually a ninja who is easily able to escape custody in the middle of NYC, then topple a building with a single roundhouse kick.
Posted by: FishyFred | March 12, 2010 10:46 AM
Michael@:
I am. I believe that compromising our principles does more harm to our Republic than KSM or any other terrorist could ever dream to inflict.
Posted by: Dave | March 12, 2010 11:02 AM
There was a brief opportunity that was allowed to slip by. Some of the detainees were willing to plead guilty to "whatever", if they would get the death penalty so they could be martyrs. Let them do that, and then have Obama commute their death sentences to life in prison.
“Justice” and “due process” are processes. They are something that has to be an integral part of the whole thing from day one, to the final verdict and until the last day of imprisonment. “Justice” and “due process” are not something you can sprinkle on at the end.
It is not possible to end up with a just process after what the Bush administration has done to these people. Injustices such as torture cannot be undone.
The problem isn't that our laws and institutions are not strong enough to deal with these people, the problem is that leaders and self-proclaimed leaders are not strong enough to accept our laws and institutions, and too disingenuous to clearly state their objections and then state how to fix those objections other than by putting themselves above the law. That is the precise thing that lead to these problems in the first place.
Posted by: daedalus2u | March 12, 2010 11:10 AM
Who knows why but the Bushies want military tribunals. That said, wouldn't the threat of civilian trials AND of investigating the myriad illegal activities of the Bush administration (torture, wiretapping, etc.) force Republicans to meet Obama halfway on things such as health programs? None of the Bush people are going to jail anyway, but why not use their sins against them?
Obama has thrown away lots of bargaining chips by being soft on Republicans.
Posted by: Reverend Rodney | March 12, 2010 11:15 AM
Jeez. Let's just turn the stupid terrorists loose. Instead of wringing our hands over how the poor little darlings are being so mistreated, send them back to Berzerkistan and let them resume doing Allah's will.
By doing so we will make the process much more efficient, and we won't be causing too much inconvenience to those fine followers of the Religion Of Peace who want to put your daughters into burkahs.
We've already demonstrated we're too stupid to have our own country. Let's quit screwing around pretending our Constitution actually means anything and just get it over with. Allah Akbar!
Posted by: uke | March 12, 2010 11:19 AM
I think Michael is refering to cases where they did have such evidence but then tortured anyway (remember evidence for a trial has never been a key aim of torture) and messed up their records so it is no longer possible to sort out the non-torture evidence.
Posted by: Matty | March 12, 2010 11:22 AM
It's not just about due process. It's also about the fact that military trials are for the military. If the government starts trying U.S. civilian crimes in front of military tribunals, I'd object exactly as much as I'm objecting to tribunals for civilians of other nations.
Posted by: Miko | March 12, 2010 11:31 AM
@Matty: Messing up their records that badly would point to either a criminal level of carelessness, or purposeful destruction of evidence. In both cases, the interrogators deserve to go to suffer the consequences.
And if they really lost that evidence, how are we to know they ever had it in the first place?
Posted by: Deen | March 12, 2010 11:52 AM
It's been 30+ years since I was a JAG officer but, unless there has been massive changes in the Uniform Code of Military Justice (UCMJ) since then, they'd have a hell of a time convicting any of the detainees under it. The UCMJ I practiced under required Miranda rights to be read to any suspect (not just someone in custody) before any statement they made could be used against them. Worse, however, is that it had rather strict "speedy trial" rules. I don't see how the government could say that any of the detainees have been responsible for their lengthy pre-trial incarceration (or that it wasn't "incarceration"). They may be able to skirt that in a civilian trial by distinguishing between military POW detainment and civilian incarceration and by timely bringing them to trial once they are transferred to civilian control but, if the argument is that they are/were subject to military courts martial, then it seems hard to justify their military confinement for years without trial.
Whatever "soulution" is finally hit on, there is no way around the fact that these people have not been given the sort of due process we expect for our own citizens or even non-Americans living in the US.
Posted by: John Pieret | March 12, 2010 11:57 AM
Michael, what information obtained through torture is required to show someone like KSM is responsible for acts of terrorism against the US? It seems to me that any information obtained through torture is inherently unreliable anyway. So it can't improve our confidence that a person is guilty. In other words, if we're "reasonably sure" of his guilt then we should be able to demonstrate that to a court. Otherwise our sureness isn't really reasonable.
A government with the power to convict people based on things they've screamed to stop the pain or gurgled through a water soaked rag is not a government worth having. Moreover, it plays right into the terrorist's hands. It confirms to the world that we are an oppressive, immoral, and tyrannical nation. It inspires people to fight against us. It may allow us to keep a terrorist in prison we couldn't convict otherwise. But it creates many more. The net effect is more terrorists free to act against us, more sympathy for their cause, and with identities unknown to us.
So to answer your question, I'm not happy about the possibility of letting someone like KSM go. But I find the alternatives of sham trials or government fiat far worse. I'm not about to let my fear of some boogeyman get in the way of my rational conclusions.
If I may ask a question (or two) in return, if the government has the power to convict people based on information obtained through torture, is there anyone who couldn't be convicted? Are you okay with an innocent person being convicted based on tortured confessions and unproven assurances of reasonable certainty?
Posted by: Abby Normal | March 12, 2010 11:58 AM
Heath: As unpopular a position as it may be to take, yes, if a case cannot be made without torture-tainted testimony, then yes, we should release them. They aren't called principles because they're mutable. That very well may mean that we have to hunt, catch, and stop them again, if they're even mentally and physically able to pursue such crimes again, but that's the price you pay for ignoring the rules in the name of expediency and personal satisfaction. Could people die? Yes, but I'll say the same thing any judge would say to a cop who cut corners and got a murderer off; We should have thought about that before we decided to break the law. Besides, if this is going to become an argument about utility, a lot more people are likely to die down the road if it becomes acceptable for our government to disappear, torture, and endlessly incarcerate people on the basis of coerced confessions. If the impartiality and sanctity of law isn't worth my life, then what is?
Posted by: Julian | March 12, 2010 11:59 AM
"Can someone explain to me what the 'legitmate' rationale is for moving the case from civilian court to military court?"
Security. I think a lot of people underestimate this issue. If you have to reveal classified information about intelligence, do you want to risk having that found out? Even if you kick out the public/media and seal documents, isn't there precedent for these kinds of thinkgs to be overturned, unsealed, grounds for appeal, etc.
Posted by: CW | March 12, 2010 12:11 PM
Abby Normal @ 18 directed at me:
I assume zero. I never insinuated such. My query is related to what John @ 17 stated coupled to the politically viable alternatives available to AG Holder or the Military Commissions.
Abby Normal @ 18:
I think you, deen, and Dave missed the fact my questions had nothing to do with my personal position or this forum's majority position, which I preemptively assumed was to release them out of our control* if their rights were abused to a horrendous degree. Instead I was asking what pragmatic alternatives AG Holder and President Obama have at their disposal.
I do think if Obama's operations are ultimately successful in Afghanistan/Pakistan in the next couple of years it might provide an opportunity that release is an option for those we can't try in any court given the abuse they received. But to argue he should do that now is as likely to happen as the President and AG indicting Bush and Cheney next month. Therefore I framed my question to practical alternatives they could choose, not what we prefer. Please appreciate the mess that President Bush left Mr. Obama.
*though not necessarily free, perhaps to their home government or another where they broke the law there.
Posted by: Michael Heath | March 12, 2010 12:19 PM
Seems to me, in the unlikely event that you're reasonably sure some of these guys are terrorists, but you can't prove it in a court of law, there's an obvious solution. Let them go and, er, keep a very close eye on them. Knowing the names of some of the guys plotting against you seems like a good thing. Gather more evidence, roll up their networks. Not seeing a downside.
Posted by: Gareth Owen | March 12, 2010 12:24 PM
Michael Heath:
Yes.
Either we have untainted evidence supporting our view that they are who the government asserts, and which is capable of withstanding scrutiny, in which case they will be convicted, or we don't, in which case they should be released.
I'm not quite sure I understand your point here. How, exactly, are we sure about KSM? I mean, I'm also assuming like you are that this is true, but I'm hoping that it's on the basis of admissible evidence (which I haven't yet seen). We do have something more to back up the assertion than confessions extracted under torture don't we? Don't we?
Posted by: Brain Hertz | March 12, 2010 12:41 PM
I took it more as, are "we as a nation" willing to do so, and I admit I didnt directly answer that question. You are correct, release of KSM or many other detainees, even after a not-guilty verdict, would probably be political suicide for Pres. Obama. But its political suicide because so many others do not believe as I, Abby, deen and I presume yourself do, which is why I feel its important to make such a declaration whenever the opportunity arises.
Posted by: Dave | March 12, 2010 12:41 PM
Julian @ 19, see my second response contained with @21 directed to Abby Normal, deen, and Dave.
I find these positions, including my own, uninteresting. It's easy for us to take these positions given that we have no skin in the game, therefore I'd argue they're abstract to a fault. I'm instead far more interested in the pragmatic alternatives the current set of players have given the nature of the environment. I have complete confidence our positions will in no way win the day for months, if ever. Therefore I was addressing more practical concerns while sharing your positions.
I thought Ed made great argument with one flaw, there will be a result to his advocacy if implemented and that result would need to be game-planned out prior to implementation. Proper due process as Ed advocates would expose an unconscionable abuse of rights as findings of fact that couldn't be ignored, even if the prosecution didn't introduce evidence extracted from the defendant that came when they were a detainee. We need to know the probable outcomes as these abuses become a finding of fact in a trial prior to starting such trials. If those outcomes are unacceptable, than I assume we won't see those alternatives implemented. We know that both Holder and Obama game-plan out their strategies (unlike President Bush).
So I'm trying to figure out the realm of the feasible, not the optimal solution. My opinion is criminal trials knowing in advance how to extradite to another country's law enforcement agency if we fail to convict when it comes to known terrorists who were abused. Such trials would further expose Bush's legacy though I concede it would also provide more ammunition to conservatives. If neither were available and I were Obama (rather than me), I would continue to kick the can down the road as he's been doing hoping success in Pakistan would yield sufficient political capital to eventually release those we know are terrorists, can't successfully convict if proper due process is re-introduced, and can't turn over to other government authorities.
Posted by: Michael Heath | March 12, 2010 12:42 PM
There is the law, and then there are other considerations.
I would think that the law is clear, if not the accused are not prisoners of war, then they should be brought before civilian courts. More obviously so, if they are U.S. citizens or residents, or apprehended in the U.S.
Glenn Greenwald often blogged about this at Salon.
Now the practical considerations:
- Trial of terrorists in a civilian court would show the world that the U.S. is indeed a country of laws; that we indeed stick to our values.
- Setting up a separate court system for terrorists will give the impression that there was not enough evidence for conviction on a normal court; the rest of the world will think we set up some kangaroo court system for show trials. (No matter how scrupulously the separate courts adhere to due process).
Even the Pakistanis use courts for suspected foreign terrorists (see http://www.salon.com/news/opinion/glenn_greenwald/2010/03/02/due_process/index.html )
- Trials in civilian courts have lead to convictions, military commissions less so
( http://www.salon.com/news/opinion/glenn_greenwald/2009/01/23/al_qaeda/ has some examples of terrorists now in prison, in the U.S.)
- It is a slippery slope: After some other particular heinous crime, no doubt some politician will suggest to move the new criminals to this new court system.
So, no, military courts, no matter how fine, are not a solution. And not right.
Posted by: A | March 12, 2010 1:39 PM
A handful of articles note the emergence of Mullah Zakir, aka Abdullah Gulam Rasoul, and I quote the WSJ , "as the Taliban's top military commander in Southern Afghanistan, where the U.S.-led coalition is now focusing its surge strategy.".
Mullah Zakir was a Gitmo detainee that the Bush Administration released around 2007. Can you imagine if the Obama Administration had released Zakir rather than the Bush Administration? Texas would have already incorporated this information into every grade's curriculum. Hell, they'd make it mandatory curricula for Algebra.
Posted by: Michael Heath | March 12, 2010 2:22 PM
Michael, I think I see what you’re asking better now. I had a knee-jerk reaction what I took to be a KSM boogeyman argument. Sorry about that.
If a trial results in acquittal here are the options as I see them in order of my preference.
1. Extradite them to another country where they’re wanted.
2. Release them to a nation with safeguards to keep them from rejoining the "war."
3. Release them to a nation without such safeguards.
4. Give them POW status, with the protections that go with it, and hold them.
5. Hold them without POW status and claim the right to do so exists no matter what the SCOTUS says.
6. "Apparent Suicide"
That order is selected based on what I think would be in the best interest of the nation and of justice. As far as political considerations, like how Republicans might twist things, I feel this is too important to let such distractions have any influence. If I were to include those considerations it would transform the conversation from what I think they should do, to what I think they will do. But that’s a rather different question from what was originally asked.
Posted by: Abby Normal | March 12, 2010 3:29 PM
Abby Normal - excellent list.
Posted by: Michael Heath | March 12, 2010 3:37 PM
As a practical matter, if these folk are so bad, there must be something else we can accuse them of. That way if the prosecution fails, we can charge them again: Initially charge them with involvement in the Afgan war. If that prosecution fails, charge them with involvement with 9/11. Then with involvement with the Cole. Since they are seperate events, double jeapardy wouldnt apply. Given the 5-10 years we have taken to get them up on charges in the first place, youve just kicked the ball down the road another 10-5 years. Perhaps in 2025, after being acquitted three times, America will be ready to see them released.
I still think this is playing a bit fast and loose with American ideals, but we would at least be paying lip service to them.
Posted by: Dave | March 12, 2010 3:55 PM
Michael Heath "We know that both Holder and Obama game-plan out their strategies (unlike President Bush)."
Bush did so! I think you're grossly underestimating the man.
He put little tanks and planes on his Risk board and made "Pyew! Pyew!" and "Whistle…kaBOOM!" sounds and everything.
"So I'm trying to figure out the realm of the feasible, not the optimal solution."
Welcome to liberalism (get used to being accused of being a utopian for being so pragmatic. I know, I was baffled the first time it happened to me, as well). If you want to see what it's like to be a progressive liberal (or even a SOCIALIST!!! lefty), imagine now that all of your "important issues" are quietly and quickly shelved until the next election cycle and your "pragmatic" solutions are watered down to irrelevance before being abandonded completely as the Official Left® follows the Right in its next lurch farther to the right.
Dave "I still think this is playing a bit fast and loose with American ideals, but we would at least be paying lip service to them."
If you pretend to follow the Constitution but won't let it protect others, don't act surprised when others who pretend to follow the Constitution make sure that it fails to protect you.
Posted by: Modusoperandi | March 12, 2010 9:20 PM
One more thing I should have added for clarification earlier:
If we're only prepared to put KSM on trial using a process in which the result is guaranteed in advance, irrespective of the evidence we're prepared to present, we're not really putting him on trial.
We might as well try him using a process of dunking him in the Potomac to see if he floats.
Posted by: Brain Hertz | March 13, 2010 1:42 PM
Pres Obama needs to do three things. First, move the federal civilian trials to a secure military base outside of New York state. NYC doesn't have the balls to host them despite having a successful history of hosting terrorist trial.
Second, tell New York City that since it cannot handle civilian trial of terrorists suspects despite all the ones held in NYC, the federal district court will relocate out of NYC to another state within the district. And perhaps other federal offices, like the Federal Reserve Bank, will move where they are appreciated,
Third, demand the defendants get the best lawyers and the media cover every minute of the trials.
Posted by: John Norris | March 14, 2010 8:50 PM