Prosecuting alleged terrorists by military commission: a prudent option.

• Author: Silliman, Scott L.

President Obama has announced that the detention facility at Guantanamo Bay will be closed by January 22, 2010. He has also said that at least some of the detainees facing criminal prosecution will be tried in military commissions. The system of military commissions established by President Bush after the 9/11 attacks, as well as the one which Congress enacted in 2006 following the Supreme Court's Hamdan decision, were widely criticized as being unproductive and not meeting international legal standards. The Congress has, very recently, revised the rules and procedures for military commissions to make them fair, effective and much more like those used for courts-martial. This article compares and contrasts trials in revised military commissions with trials in federal district courts. It concludes that a combination of both forums would best serve the President, and that military commissions are still a prudent option for prosecuting some detainees where there are security and admissibility of evidence concerns.

1. INTRODUCTION

   Two months after the horrific terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, then-President George Bush issued a Military Order which authorized the detention and trial by military commission of non-U.S, citizens who were members of al-Qaeda, who had engaged in international terrorism, or who had knowingly harbored individuals in either category. (1) Some of those captured by our military forces in Afghanistan, or turned over to us by the Northern Alliance, were transferred to the U.S. Navy detention facility at Guantanamo Bay, Cuba, a place far from the battlefield. Guantanamo Bay was chosen, in part, because it was deemed to be outside the jurisdictional reach of the federal courts. (2) The Bush Administration claimed that it had the right under the law of war to detain those at Guantanamo Bay until the cessation of hostilities, whenever that might be. The Bush Administration also claimed to be able to prosecute a detainee by military commission for "violations of the laws of war and all other offenses triable by military commission." (3) However, between November 2001 and the summer of 2006, the U.S. completed no military commission trials, and on June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld (4) that the military commission system established by President Bush violated two specific provisions of the Uniform Code of Military Justice (UCMJ), Articles 21 (5) and 36(b). (6)

   The Court held that Article 21 incorporates provisions of the Geneva Conventions of 1949 as part of the law of war, specifically the clause of Common Article 3 relating to minimal judicial guarantees for prosecutions. (7) Four months after the Court's decision in Hamdan, Congress responded by enacting the Military Commissions Act of 2006 (MCA). (8) Among other objectives, the MCA sought to improve the military commission system by correcting many of the deficiencies delineated by the Court in Hamdan and by providing military commissions with a firm statutory predicate. From 2006 until January 22, 2009, however, when President Obama directed the suspension of any further military commission proceedings, (9) the U.S. completed only three trials. (10) In the Spring of 2009, the Obama administration made some changes to military commission procedures, (11) and the President has indicated his intent to use military commissions for prosecuting at least some of the detainees. (12) In furtherance of the President's decision, Congress recently amended the MCA to make the military commission system fairer and more effective. (13) Many argue, however, that those detainees for whom there is some evidence of criminality should be tried in the federal district courts rather than in military commissions because of the stigma attached to the hearings already conducted at Guantanamo. (14) Which, then, is the better prosecutorial forum to use?

   This article assesses prosecuting the detainees in federal district courts and military commissions. It compares and contrasts each, and argues that recent legislation revising the rules and procedures for military commissions makes that forum a prudent option to be used in combination with the federal district courts.

2. ASSESSING THE TWO FORUMS

   1. The Federal District Courts

      High profile terrorism cases, such as the trials of Zacarias Moussaoui and Jose Padilla, have, in the past, been successfully prosecuted in the federal district courts. Additionally, at least one of the detainees, Ahmed Ghailani, has already been moved to New York and charged with offenses in connection to the 1998 bombings of our embassies in Kenya and Tanzania. (15) For other potential cases, there are numerous "terrorism" crimes available for U.S. attorneys to use in criminal prosecutions, most notably those statutes which proscribe providing material support for terrorists and providing material support to a foreign terrorist organization. (16)

      However, prosecuting a large number of the Guantanamo Bay detainees in the federal district courts would involve unique challenges. Assuming that some of the potential evidence in many cases would be highly classified, the trial judge would need a Sensitive Compartmented Information Facility (SCIF) (17) when reading the classified documents and for securely storing the evidence when trial is not in session. Additionally, in order to assist the judge during trial, law clerks would need to have the...