Terrorism Trials: Legislative Development

House Votes to Bar Civilian Trial of Persons Within Scope of Military Commission Jurisdiction

By Robert Chesney
Friday, May 18, 2012, 5:45 PM

Amidst all the discussion of whether and how to amend the House NDAA bill to address domestic captures, I am amazed that I did not notice the Rooney Amendment, which has been adopted.  What does it do?  Well, it looks like it flat out forbids civilian criminal prosecution for persons who would come within the personal jurisdiction of a military commission, at least if the plan is to charge the person for an offense that could also be charged by commission.  Now perhaps I'm misunderstanding what transpired today, but if this did indeed get adopted, it is hugely problematic.  Where to begin?  Well, how about the situation where the person in question is captured by an ally who will not turn him over to us unless we plan to use civilian prosecution?  Or more generally the notion that it is simply terrible policy to tie the president's hands, taking off the table a very reliable option for post-capture disposition--one that may not be the right answer in every case, but is the right answer in some cases?  Or how about the huge uncertainty this creates in terms of just who is subject to it, given the considerable room for debate regarding the precise scope of the military commission system's personal jurisdiction test.

Bottom line:  This is a really big deal if I'm understanding it correctly, and ought to be the focus of attention (and criticism).  Here is the text, in any event:


After the date of the enactment of this Act, any foreign national, who--

(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack against persons or property in the United States or against any United States Government property or personnel outside the United States, and

(2) is subject to trial for that offense by a military commission under chapter 47A of title 10, United States Code,

shall be tried for that offense only by a military commission under that chapter.

And here is what Representative Rooney (R-FL) said at the time of introducing the amendment:

The Acting CHAIR. Pursuant to House Resolution 661, the gentleman from Florida (Mr. Rooney) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Florida.

Mr. ROONEY. Mr. Chairman, I yield myself such time as I may consume.

My amendment simply codifies in the NDAA that any foreign terrorist detained be tried in a military tribunal set up by this Congress rather than in an Article III court. The reason for that is quite simple.

Article III courts, which are reserved for our citizens, afford constitutional rights: the right of an attorney, the right to remain silent, a right to face your accuser and to contradict the evidence that's brought against you, evidence which sometimes is being offered by the government and by people in the intelligence community--information and sources that need to be protected.

Military tribunals, I think, are the more adequate venue for foreign terrorist enemy combatants to be tried and to be given due process fairly, which would also protect our sources and would also protect the way that we gather evidence by men and women in uniform and by panels of men and women in uniform. I had the pleasure of serving in the United States Army JAG Corps. They are people of the utmost integrity and the utmost fairness.

Specifically, despite the fact of our moving further away from 9/11, the war on terror continues, as we have seen with Abdulmutallab, the underwear bomber, as we have seen with Major Nidal Hasan in the Fort Hood shootings, as we have seen with the Times Square bombing, and as we have seen as recently as last week in a second attempt at an underwear-type bombing on an airplane.

So, for these reasons and for the reasons stated previously with regard to detainees at Guantanamo Bay, for those who are not U.S. citizens but who are foreign terrorist detainees--and they should get due process--I believe in the due process venue of the military tribunals and military court down in Guantanamo Bay so that they may get their day in court in a fair way, one that is humane and just.

UPDATE from Wells (10:07 p.m.): readers will recall that a comparable amendment passed the House last year, in early debate over the 2012 NDAA.  That proposal, offered by Rep. Vern Buchanan, was as toxic as the one summarized above - as Ben and Bobby explained.