The Case for Military Tribunals
If the trial of '20th hijacker' Zacarias
Moussaoui taught us anything, KSM should not be tried in civilian court.
Changing the Zip Code of the trial of Khalid Sheik Mohammed and four other
terrorists from New York City to Somewhere, U.S.A. does not solve the problems a
civilian trial raised in the first place. The decision does provide some
justice because hundreds of millions of dollars in security costs will not be
borne by the city that was the major victim of this terrorist quintet. But
security and other issues do not disappear with new geography; they just move to
the next location.
Try Washington, D.C., where the federal courthouse is a mere bomb’s throw
away from the House and the Senate. Congress will certainly nix that possible
venue. So where? Any population center with suitable courts and jails (meaning
attack proof) will incur the same costs and lockdowns, including roof top
snipers and street closings, that New York was planning. Any remote location,
such as a military base, will cost time and money because security enhanced
courtrooms and holding facilities will have to be built. Waiting for this
construction clearly casts aside “swift” justice, a promise this administration
made to the victims’ families when explaining a rationale for moving the trials
to our shores, and which was reiterated by David Axelrod just last Sunday on
Meet the Press.
In its attempt to sell us on civilian trials for terrorists, the
administration claims we need to demonstrate that “we have the best criminal
justice system in the world.” For just that reason illegal enemy combatants
should not be tried under its rules.
Battleground conditions do not translate to federal criminal rules. There
are no evidence bags stored in the foxhole to preserve the chain of custody. Any
effort by a trial judge to force the terrorist’s foot into our constitutionally
honed Cinderella shoe threatens valued protections that have been enlarged over
two centuries of Supreme Court review, most since World War II. At the same
time, a policy that includes the possibility of a civilian trial for any
terrorist controls our treatment of all terrorists, thereby crippling our
ability to obtain needed intelligence.
Assume that for KSM et al there are no Miranda issues. That is, the
government has sufficient evidence to prosecute and convict without using any
statements made sans warnings about the rights to a lawyer and to remain
silent. But what about combatants captured in the future? What if Osama Bin
Laden is found alive? Does he have to be given Miranda warnings just in case he
could be tried in a federal court?
The administration pretends it is satisfied with the information it received
during a 50 minute interview with Christmas Day bomber wanna-be Umar Farouk
Abdulmutallab, leaking that he revealed more bombers were on their way. Yet,
three factors that take months to develop but which are necessary for meaningful
interrogation were missing: questions based on information in our files like his
email intercepts, verification of his answers, and a person having a rapport
with him doing the questioning. We shut Abdulmutallab up for the appearance
niceties attendant to a regular criminal process when we had almost 300
witnesses to his crime so did not need his “confession.” Don’t we want to know
who those other bombers are, and where and when they are coming? The fact that
Abdulmutallab is considering cooperating is of no consolation. One month of
valuable time has been lost. What’s more, we have put the terrorist in the
driver’s seat, allowing him to bargain when and what he will reveal.
A major problem unfamiliar to non lawyers is the Brady rule, which
requires the government to provide the defendant with any evidence that could be
“exculpatory.” This broad term includes access to any witness and document that
could directly bear on innocence, as well as information that could indirectly
help, such as impeachment material revealing whether the witness was given money
for appearing even if just travel expenses. Brady, a valuable tool for
defense counsel, is a constitutionally based requirement. Most often, if not
followed, it results in reversal of the conviction. It is usually played out
pretrial where the defense requests specific witnesses and documents, and the
court decides whether the requests are speculative or should be granted.
This issue brings us to the trial of Zacarias Moussaoui, much touted by the
administration as an example of a successful terrorist prosecution by the Bush
Justice Department. It is not. It was a three-and-a-half year legal nightmare
for the prosecution. Using Brady, Moussaoui demanded to depose
numerous detained enemy combatant witnesses. The judge found he was entitled
access to three of them. Understandably, the government did not want to grant
one terrorist the ability to question another, nor to disrupt captives
undergoing their own interrogation processes. When informed it could not
comply, the court denied the government the ability to argue for the death
penalty.
Moussaoui also used Brady to request reams of classified documents
via the Classified Information Procedure Act (CIPA). The process usually
entails the government rewriting classified documents as classified summaries
and giving them to a security “cleared” defense counsel. Moussaoui, the
terrorist, insisted on his constitutional right to defend himself so he could
personally review the classified summaries. When allowed to write his own
motions, Moussaoui filed threats against public officials. When he was in
court, Moussaoui ranted that he prayed for the “destruction of the Jewish
people.”
The appellate court restored the death penalty. However, other appellate
remands had not been completely worked out at the trial court level when
Moussaoui decided to plead guilty, over his counsels’ objection. Even though
Moussaoui admitted during his plea that he had communicated directly with OBL
and trained at a terrorist camp, that he “knew of al Qaeda’s plan to fly
airplanes into” the White House and World Trade Center Towers, that he had
agreed to “participate” in that plan, and that when he was arrested he lied to
the FBI because he wanted the mission “to go forward,” the jury declined to give
him the death penalty.
Unsatisfied with escaping death, Moussaoui made a rare appeal of a guilty
plea claiming, in part, he was forced to plead because of not having access to
classified documents and fellow terrorists. It took the appellate court 78
pages to discuss the issues, holding that because he pleaded guilty he had
waived those arguments. Good lesson for KSM. Go to trial because the Brady and
CIPA issues await you.
Then there are the problems of a judge needing lifetime security after trying
a terrorist case, a la former judge Michael Mukasey who presided over the 1993
World Trade Center bombing trial, and a jury being skewed against the
prosecution for fear of retribution if voting for conviction or the death
penalty.
John Brennan, White House counter terrorism adviser, was recently asked what
was the downside for treating Abdulmutallab as an enemy combatant. He replied
there were no “downsides or upsides.” Brennan is misinformed. Cost, security,
and abuse of our criminal procedures are downsides for treating enemy combatants
as regular criminals. Guantanamo has secured facilities. Military tribunals are
constitutional. There is no downside for using them.
Victoria Toensing, former deputy assistant attorney general (criminal
division) and chief counsel for the Senate Select Committee on Intelligence, is
founding partner of diGenova & Toensing.
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