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Umar Farouk Abdulmutallab, arrested on Friday after he apparently tried to blow a hole in a Northwest Airlines jet, is now facing terrorism charges in federal court in Michigan. The criminal complaint in his case alleges that there is probable cause to believe that he violated 18 U.S.C. § 32, which, among other things, establishes criminal penalties for any attempt to place “a destructive device or substance in, upon, or in proximity to” an aircraft, if that act is likely to endanger the aircraft’s safety.
Like Richard Reid, Ahmed Ressam, Zacarias Moussaoui, and countless other convicted terrorists, Abdulmutallab will be tried in a civilian court whose judge is protected from inappropriate political pressure, whose procedures include necessary protections for national security information, and whose verdicts are generally viewed as fair.
Unfortunately, not every suspected terrorist in US custody will face justice in federal civilian court. A still unknown number of detainees held at Guantanamo are slated for trial in substandard military commission proceedings governed by a new law that President Obama signed in October. Called the Military Commissions Act of 2009, the new legislation replaces — and somewhat improves upon — the Bush-era military commissions law known as the Military Commissions Act of 2006.
In this column, I’ll examine some ways in which the new legislation strays from the Bush-era model.
Reinstating the Geneva Conventions as a Source of Rights
One of new law’s reforms is set out in a provision that covers the 1949 Geneva Conventions, including Geneva Convention protections on the humane treatment of detainees. It is no secret that the Bush administration was hostile to the Conventions, preferring abusive interrogation methods to the methods mandated by international law. Ignoring dissenting voices like Colin Powell, who explained that, given the number of US soldiers around the world, the United States should try to strengthen rather than flout international protections against torture, the Bush administration claimed that the Geneva Conventions were inapplicable to terrorism suspects picked up in Afghanistan and elsewhere.
While the US Supreme Court forced the administration to back down from this extreme position, the Military Commissions Act of 2006 still contained a provision that codified, to an extent, the Bush administration’s deep animus toward the Conventions. The provision, in section 948b of the law, barred defendants from invoking the Geneva Conventions “as a source of rights.” Although the Supreme Court had relied on the Conventions, in part, to strike down the previous set of military commission rules in the 2006 case of Hamdan v. Rumsfeld, the 2006 law purported to make the Conventions irrelevant to any assessment of the Bush-era commissions’ fairness.
In what is both a symbolic and substantive step forward, the new law rescinds this restriction. The law does, however, bar persons subject to military commission proceedings from asserting the Conventions as the basis for an independent cause of action. What this means, in practice, is that persons deemed by the courts to be “alien enemy belligerents” may be barred from filing suit for violations of the Geneva Conventions.
This brings us to another improvement in the new law. Somewhat paradoxically, even as the 2006 law tried to nullify the impact of the Geneva Conventions, it also contained a provision specifically stating that military commissions complied with the Geneva Convention requirement that detained persons be tried in a “regularly constituted court,” affording all the “judicial guarantees which are recognized as indispensable by civilized peoples.” (An aside: Please don’t accuse me of mimicking John Yoo, but one might say that the Geneva Conventions’ reference to “civilized peoples” is quaint, even antiquated. Still, the substance of the protection is valid.)
This 2006 provision, also contained in section 948b, was the legal equivalent of empty rhetoric. It added nothing meaningful to the substance of the law — it didn’t, for example, impose any requirement that the commissions respect basic procedural guarantees — it simply expressed Congress’s view that the commissions were consistent with Geneva Convention protections. Or, more to the point, it expressed Congress’ wish that the courts would find that the commissions were consistent with Geneva Convention protections. At most, it represented a congressional effort to put a thumb on the scales of justice.
Saying something is so does not make it so, even when the speaker is the US Congress. The new law wisely omits this provision.
On Whether Terrorist Suspects “Deserve” Justice
In the next column in this series, I’ll examine some of the ways in which the new law falls short of American standards of justice.
In the meantime, a note in closing: Already, some commentators have suggested that suspected terrorists like Abdulmutallab don’t “deserve” the protections of the US criminal justice system. Such a claim reflects a deep misunderstanding of the purpose of criminal justice guarantees. Despite the formal construct of “the People” or “the United States” versus the defendant, the criminal justice system is not a zero-sum game; what protects the defendant does not hurt the public.
Indeed, it is by requiring that the accused not be subject to abusive interrogations, have a meaningful opportunity to challenge the evidence against him, and enjoy the assistance of counsel, that the US system of criminal justice tries to get at the truth. Wrongful convictions don’t just inflict grievous injury on the defendants, they waste scarce resources, and harm the credibility of the entire system.
The US federal courts – and the credibility of their verdicts – are one of the greatest assets that the United States has in fighting terrorism. To waste this asset by relying on substandard criminal proceedings would not just be wrong, it would be stupid.
JOANNE MARINER is a human rights lawyer living in New York and Paris.