Terrorism Trials & Investigations

NYT Room for Debate Forum on Military Commissions

By Benjamin Wittes
Monday, November 19, 2012, 7:37 AM

The New York Times is running a Room for Debate feature entitled "Time to End Military Tribunals?" It reads a bit like a debate in which the participants are all going through the shadow-boxing motions---but the footwork was learned long ago and is coming out now by rote muscle memory. The exchange includes contributions from Andrea Prasow of Human Rights Watch ("A Failed Experiment"), Eric Posner ("Foreign Terrorists are Different"), Vincent Warren of the Center for Constitutional Rights ("Shut the Whole Thing Down"), Glenn Sulmasy ("A Hybrid Court for a Hybrid Warrior"), and Laura Donohue ("We the People Should Judge"). The conversation proceeds entirely in the abstract. Not one discusses the actual cases that are taking place in military commissions today. Not one grapples with  the practical alternatives to commissions in a world in which a strong bipartisan majority in Congress forbids federal court trials for Guantanamo detainees.

Indeed, the arguments are all old. Human Rights Watch's critique of the commissions is no different today than it has been for years ("they remain fundamentally flawed, lacking independence and admitting inferior evidence like coerced testimony and hearsay"), and Prasow handles the congressional barrier to federal court trials simply by announcing that the president should "work with Congress" to lift the transfer restrictions. Sulmasy has been arguing just as long for a hybrid court---and the idea, whatever its merits, is still not going to happen. Warren's position, which denounces not only the commissions but the civilian justice system too, is so extreme that it has limited relevance to anyone who actually wants to put terrorists on trial in any forum ("we cannot simply extol high conviction rates as proof that federal courts are the answer. As we explore how best to try these cases, we also need to challenge the ways in which our criminal justice system is unconstitutional and unjust").

News flash: The premise is wrong; military commissions aren't ending.  The question now is not whether we're going to try people in them, but how many people---and what sort of people. Will the commissions be just a Nuremberg-like forum for the trial of a discrete group accused of a specific group of crimes---a forum for trying Al Qaeda operatives captured in the early days of the war? Or do they have a prospective role too? That is, will they become a more permanent feature of our justice system? And what, if they have some prospective role, is that role precisely?