The new chief judge of the military commissions at Guantanamo Bay, Marine Col. Ralph H. Kohlman, is being confronted with a paper that was written back in 2002 at the Naval War College criticizing President Bush’s and the Pentagon’s plan to use military tribunals to try suspected terrorists.
The paper said that it would be better to try suspected terrorists as criminal defendants in federal district court rather than in military tribunals at Guantanamo Bay, a position that we have advocated here at The Future of Freedom Foundation since 9/11, when President Bush and the Pentagon unilaterally assumed the power to treat people as “enemy combatants” in their “war on terrorism.”
Bush later persuaded the Republican-controlled Congress to ratify such power in the Military Commissions Act. No constitutional amendment was ever sought for the exercise of this tyrannical power, and the U.S. Supreme Court has yet to rule on the constitutionality of the enemy-combatant power and the Military Commissions Act.
Today the president and the Pentagon have the option of sending a suspected terrorist down the enemy-combatant road or down the federal-court road. Not only does such discretion violate the age-old principle of the “rule of law,” it also has major consequences for those who are accused of terrorism.
The enemy-combatant road leads to torture and sex abuse, indefinite confinement, rigged and secret kangaroo proceedings, and even execution.
The federal court road leads to due process of law, right to counsel, trial by jury, and protection against illegal searches, self-incrimination, and cruel and unusual punishments.
“Unnecessary use of military tribunals in the face of reasonable international criticism is an ill-advised move,” the Naval War College paper stated. The paper referred to the Bush administration’s “spinmeisters” and, according to the New York Times, dismissed “the argument that the new challenges of fighting terrorism meant that civilian judges and juries would be endangered by federal trials.”
The paper also pointed out that previous prosecutions for terrorism and organized crime showed that “the existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends.”
Who was the author of the paper? The new chief judge of the military commissions at Guantanamo Bay, Marine Col. Ralph H. Kohlman himself.
JACOB HORNBERGER is founder and president of The Future of Freedom Foundation.