Mea Culpa: Trial Forums of all Types

By Benjamin Wittes
Monday, August 29, 2011, 11:14 AM

In kicking off Lawfare's 9/11 10th anniversary project devoted to laying bare our own non-trivial errors of analysis or understanding over the last decade, I have a number from which to choose. All, however, pale in comparison to my vacillations over the appropriate trial forum for terrorism cases. My many critics have been gracious enough not to notice the consistent inconsistency of my position on trials over the years. But in retrospect, it is faintly comical. Not only have I been wrong, I have been wrong over and over again--having serially overreacted to the events of specific moments in time.

When President Bush first announced his plan for military commissions, I was horrified. The Washington Post does not disclose which editorial writer pens specific editorials, and I will not violate that policy now. I will content myself with noting that, as the member of the editorial board at the time who was responsible for legal affairs, I was perfectly comfortable with the Post's editorials decrying the commissions. I saw no need at all for an alternative trial forum of any kind. It never occurred to me that that large numbers of people would be captured and would go untried altogether. I certainly never envisioned the logistical and legal challenges associated with setting up a new trial system. The equation seemed to me quite simple: There was the justice system, and there was a new proposal for a second-class justice system that would take its place. I had no doubt that it was a bad trade.

Then I saw the Zacarias Moussaoui trial--and my other knee jerked. The Moussaoui trial convinced me that the United States desperately needed an alternative to federal court trials. Here was a single defendant turning the system in knots, using the right to represent himself while in the dock as a pulpit, causing an intense resource investment to convict a single person. There simply had to be a better, more streamlined, more secure way to do this, I thought. And I took another look at military commissions. Suddenly, the stripped-down procedures which had earlier struck me as horrifying abridgments of basic trial norms seemed pretty reasonable. I became convinced that getting some modestly-amended version of the commissions off the ground was an urgent matter.

The trouble was that I also radically underestimated the difficulties of getting this system going. And as my frustration grew with these difficulties--and with the commissions' inherent legitimacy problems--I began to look at the possibility of still another tribunal, what I and others inaptly called a national security court. This idea I do not repent. I still think that ideally, terrorism trials should take place in a specialized tribunal tailored for them. But I'm afraid I confused a long-term policy option with a short-term policy response. The national security court idea, if it has legs, will be the product of evolutionary development in Congress and in the courts over a long period of time. It will evolve because certain combinations of institutions and rules and procedures work better over many iterations of effort than do others for these trials, and because Congress eventually decides to institutionalize those judgments about which systems work better in statute. That evolution has already begun with the passage of two versions of the Military Commissions Act. And in the meantime, the federal courts have proven themselves far more capable as a terrorist trial forum than I believed possible.

The result of all of this vacillation is that I have become unwilling to let my knee jerk again either in support of or in opposition to any trial option. I support all systems and want a thousand flowers to bloom. I want to see the military commissions develop and will defend the propriety of using them. I have come to believe that federal courts provide the right forum for many, even most terrorism cases. I believe in non-criminal detention as an alternative to trying certain people at all. And I still have my eye on that long-term development of some alternative trial framework that draws on both the military and civilian traditions. Unprincipled? Maybe. I call it learning from mistakes.