The Resurgence of Military Trials

by JOANNE MARINER

Congressional Republicans have won a string of victories in their fight to preserve the Bush Administration’s harmful “war on terror” policies.

They blocked the transfer of prisoners from Guantanamo to the United States, keeping the military prison at Guantanamo open despite President Obama’s 2009 executive order that called for the facility’s closure.

They forced the Justice Department to back down from its decision to prosecute Khalid Sheikh Mohammed and his four co-defendants in U.S. federal court, even though Attorney General Eric Holder was personally committed to trying the men in fair civilian proceedings.

Exercising the filibuster, their weapon of choice, they derailed the confirmation of James Cole as deputy attorney general last May, citing the nominee’s past claims that the federal courts were preferable to military commissions in trying terrorist crimes.

Their latest campaign seems even more ambitious.  Not satisfied with keeping Guantanamo open, they want its population to expand.  They are also seeking to ensure that military commissions, not federal courts, become the default forum for trials of terrorist suspects, no matter where those suspects are found or where their alleged crimes have taken place.

The extent to which the Obama Administration will defend against these pressures is unclear.  An ongoing case involving an alleged Hezbollah commander detained in Iraq for crimes against U.S. military personnel may mark a negative change in approach.

The Republican Offensive

In a letter sent to Attorney General Holder in May, five Republican members of the Senate Judiciary Committee called for the detainee, Lebanese citizen Ali Mussa Daqduq, to be brought before a military commission for trial.  They also posed aggressive questions as to why the Administration was not considering transferring Daqduq to Guantanamo.

To date, the Obama Administration has not moved a single new detainee to Guantanamo, nor has it brought military commission charges against any detainees who had not previously been charged in that forum.  Despite congressional criticism, terrorist suspects like Uman Farouk Abdulmuttalab, the Nigerian so-called underwear bomber picked up in Detroit, and Abdulkadir Warsame, the Somali alleged militant picked up in the Gulf of Aden, have been charged in civilian courts in the United States.

Even the most superficial scrutiny of the courts’ record shows why the Administration has confidence in them.  Over the past decade, the federal courts have handled hundreds more terrorism cases than have the military commissions, and have provided fairer proceedings than would be possible using the commissions’ flawed structures.

Critics of the federal court system cannot point to a single case in which a genuine terrorist has escaped conviction. Indeed, sentences have generally been longer in the federal courts than in military commissions.

But the Administration’s practice of bringing all new terrorism cases to federal trial may change.  According an article written by the Associated Press last weekend, the Obama administration is now seriously considering holding the Daqduq trial in a military commission, albeit one on a military base on U.S. soil.

The Bush Precedents

One of the sad ironies of the Obama administration’s current predicament is that in pressing for Daqduq’s military trial congressional Republicans are seeking to out-Bush the “war on terror” president himself.  Daqduq was originally captured in 2007, and it was the Bush Administration that made the then-uncontroversial decision to try him in civilian proceedings.

The choice was not unprecedented.  Just two months prior to Daqduq’s capture, the U.S. government had arraigned another defendant in federal court who was implicated in terrorist crimes in Iraq; the defendant later pled guilty.  During the Bush Administration, in fact, no detainees were brought from Iraq to Guantanamo, and no crimes committed in Iraq were ever prosecuted by military commission.

There is no good reason why this approach should change.  Just yesterday, in a commonsense ruling that does not mention Guantanamo or military commissions, let alone the heated political debates surrounding them, a federal judge reaffirmed the power of the U.S. courts to adjudicate cases involving terrorist acts in Iraq.  Rejecting an Iraqi defendant’s claim that conduct occurring in Iraq was beyond the reach of the U.S. judicial system, the court denied his motion to dismiss parts of the federal indictment against him.

If only Congress’s wrongheaded assertions could be so firmly quashed. One part partisan politics and two parts fear-mongering, congressional attempts to expand Guantanamo and reinvigorate the military commission system will be ever more ambitious until the Obama Administration makes more convincing efforts to resist them.

Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law.

This column previously appeared on Justia’s Verdict.

Like What You’ve Read? Support CounterPunch
Weekend Edition
August 28-30, 2015
Andrew Levine
Viva Trump?
Jeffrey St. Clair
Long Time Coming, Long Time Gone
Mike Whitney
Looting Made Easy: the $2 Trillion Buyback Binge
Alan Nasser
The Myth of the Middle Class: Have Most Americans Always Been Poor?
Rob Urie
Wall Street and the Cycle of Crises
Ismael Hossein-Zadeh
Behind the Congressional Disagreements Over the Iran Nuclear Deal
Randy Blazak
Donald Trump is the New Face of White Supremacy
Lawrence Ware – Marcus T. McCullough
I Won’t Say Amen: Three Black Christian Clichés That Must Go
Evan Jones
Zionism in Britain: a Neglected Chronicle
John Wight
Learning About the Migration Crisis From Ancient Rome
Andre Vltchek
Lebanon – What if it Fell?
Robert Fantina
Hillary Clinton, Palestine and the Long View
Ben Burgis
Gore Vidal Was Right: What Best of Enemies Leaves Out
Suzanne Gordon
How Vets May Suffer From McCain’s Latest Captivity
Robert Sandels - Nelson P. Valdés
The Cuban Adjustment Act: the Other Immigration Mess
Uri Avnery
The Molten Three: Israel’s Aborted Strike on Iran
John Stanton
Israel’s JINSA Earns Return on Investment: 190 Americans Admirals and Generals Oppose Iran Deal
Bill Yousman
The Fire This Time: Ta-Nehisi Coates’s “Between the World and Me”
Michael Welton
The Conversable World: Finding a Compass in Post-9/11 Times
Brian Cloughley
Don’t be Black in America
Charles Pierson
How the US and the WTO Crushed India’s Subsidies for Solar Energy
Kent Paterson
In Search of the Great New Mexico Chile Pepper in a Post-NAFTA Era
Binoy Kampmark
Live Death on Air: The Killings at WDBJ
Gui Rochat
The Guise of American Democracy
Emma Scully
Vultures Over Puerto Rico: the Financial Implications of Dependency
Chuck Churchill
Is “White Skin Privilege” the Key to Understanding Racism?
Kathleen Wallace
The Id(iots) Emerge
Andrew Stewart
Zionist Hip-Hop: a Critical Look at Matisyahu
Gregg Shotwell
The Fate of the UAW: Study, Aim, Fire
Halyna Mokrushyna
Decentralization Reform in Ukraine
Scott Parkin
Katrina Plus Ten: Climate Justice in Action
Norman Pollack
World Capitalism, a Basket Case: A Layman’s View
Sarah Lazare
Listening to Iraq
John Laforge
NSP/Xcel Energy Falsified Welding Test Documents on Rad Waste Casks
Wendell G Bradley
Drilling for Wattenberg Oil is Not Profitable
Joy First
Wisconsin Walk for Peace and Justice: Nine Arrested at Volk Field
Mel Gurtov
China’s Insecurity
Mateo Pimentel
An Operator’s Guide to Trump’s Racism
Yves Engler
Harper Conservatives and Abuse of Power
Michael Dickinson
Police Guns of Brixton: Another Unarmed Black Shot by London Cops
Ron Jacobs
Daydream Sunset: a Playlist
Charles R. Larson
The Beginning of the Poppy Wars: Amitav Ghosh’s “Flood of Fire”
David Yearsley
A Rising Star Over a Dark Forest
August 27, 2015
Sam Husseini
Foreign Policy, Sanders-Style: Backing Saudi Intervention
Brad Evans – Henry A. Giroux
Self-Plagiarism and the Politics of Character Assassination: the Case of Zygmunt Bauman