FacebookTwitterGoogle+RedditEmail

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.

JOANNE MARINER is a human rights lawyer living in New York and Paris.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
February 24, 2017
Friday - Sunday
Charles R. Larson
Review: Timothy B. Tyson’s “The Blood of Emmett Till”
February 23, 2017
Dave Brotherton
Trump, Moral Panics and Resistance
Jonathan Cook
One State: Trump Has Reminded Palestinians What It Was Always About
Bill Quigley
Ten Examples of Direct Resistance to Stop Government Raids
Linn Washington Jr.
Bigot Boy Business: Trump Exposes His Ignorance and Intolerance, Again
John W. Whitehead
The Illusion of Freedom: the Police State Is Alive and Well
Ralph Nader
Restricting People’s Use of Their Courts
David Macaray
Women As Labor Union Organizers
Kathy Kelly
Friendship in Defiance of War
Doug Weir
Why Did the US Use Depleted Uranium Weapons in Syria?
Steve Horn
Former GOP Congressional Staffer Follows Revolving Door, Now Latest Keystone XL Lobbyist
Binoy Kampmark
From Rights to Repentance: Norma McCorvey and Roe v Wade
Thomas Knapp
The Target of the “Border Adjustment Tax” is You
Chris Zinda
Open Letter to Neoliberal Environmentalists
February 22, 2017
Mike Whitney
Liberals Beware: Lie Down With Dogs, Get Up With Fleas
John Grant
On Killers and Bullshitters*
Peter Linebaugh
Catherine Despard, Abolitionist
Patrick Cockburn
The Bitter Battle for Mosul
Ted Rall
Sue the Bastards? It’s Harder Than You Think
Yoav Litvin
The Emergence of the Just Jew
Kim Scipes
Strategic Thinking and Organizing Resistance
Norman Pollack
Mar-a-Lago, Ideological Refuge: Berchtesgaden, II
Fred Donner
Nixon and the Chennault Affair: From Vietnam to Watergate
Carl Kandutsch
Podesta vs. Trump
Ike Nahem
To the Memory of Malcolm X: Fifty Years After His Assassination
Jesse Jackson
Trump’s Tough Talk Won’t Fix Chicago
Paul Donnelly
Betsy DeVos and the War on Public Education
Ebony Slaughter-Johnson
The End of an Alliance for Police Reform
Richard Lawless
Wall Street Demanded the Nuclear Option and the Congress Delivered
Liaquat Ali Khan
Yes, Real Donald Trump is a Muslim!
Ryan LaMothe
“Fire” and Free Speech
CounterPunch News Service
Bloody Buffalo Billboards
February 21, 2017
Sharmini Peries - Michael Hudson
Finance as Warfare: the IMF Lent to Greece Knowing It Could Never Pay Back Debt
CJ Hopkins
Goose-stepping Our Way Toward Pink Revolution
John Wight
Firestarter: the Unwelcome Return of Tony Blair
Roger Harris
Lenin Wins: Pink Tide Surges in Ecuador…For Now
Shepherd Bliss
Japanese American Internment Remembered, as Trump Rounds Up Immigrants
Boris Kagarlitsky
Trump and the Contradictions of Capitalism
Robert Fisk
The Perils of Trump Addiction
Deepak Tripathi
Theresa May: Walking the Kingdom Down a Dark Alley
Sarah Anderson
To Save Main Street, Tax Wall Street
Howard Lisnoff
Those Who Plan and Enjoy Murder
Franklin Lamb
The Life and Death Struggle of the Children of Syria
Binoy Kampmark
A Tale of Two Realities: Trump and Israel
Kim C. Domenico
Body and Soul: Becoming Men & Women in a Post-Gender Age
FacebookTwitterGoogle+RedditEmail