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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.

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