The 9/11 Defendants. What to do?

How we deal with terrorists is not a settled issue. Last week I called the local Massachusetts office of the ACLU (Boston, MA) and left a question with the person answering the phone regarding the position of the ACLU (of which I am a paid up member) on unlawful combatants.  They have yet to get back to me.  This week I got a call from someone soliciting money for the ACLU and I noted that I hadn't gotten an answer to my question and the person said that everyone has to be released some time.  I don't think that is what the Law of Armed Conflict says.

Sometimes in these discussion the Nuremberg Trials after World War II come up.  Here is a comment by a former military lawyer (Judge Advocate General, as they are called).

I have grown tired of hearing about Nuremberg.  While it was certainly a commendable achievement in its time, it has, in my view, taken on some romanticized aura greater than it warrants.  Recall that Nuremberg predates the Geneva Conventions and 65 years of legal developments that have occurred since WWII.  At Nuremberg there was no hearsay rule (some of the lesser cases were based entirely on hearsay evidence), the accused was required to take the stand and be cross-examined by Robert Jackson and the other prosecutors (there was not right against self-incrimination), most of the charged offenses did not exist prior to WWII (ex post facto offenses) and there was no post-trial review (those sentenced to death were hung shortly after the verdicts were announced).  When people used to throw up Nuremberg as some shining example of how we once did it right, I’d say I would be happy to use the Nuremberg rules at Gitmo, but I was hoping to have fair trials.  If you compare the original order President Bush signed in November 2001 in an effort to create military commissions, the Military Commissions Act of 2006, or the Military Commissions Act of 2009, you’ll find that any proposed version of military commission we’ve attempted since 9/11 affords an accused far greater protections than anyone ever received at Nuremberg.

As for how military prosecutors prepare cases and prove guilt, that is clearly defined for courts-martial where we have rules of evidence and rules of procedure that we’ve used and refined over many years.  On the other hand, the UCMJ made reference to military tribunals and military commissions, but offered no express guidance on what rules did or did not apply.  Some critics said we were making it up as we went along and they’re not too far off base.

One question we have to answer is if we are going to treat terrorists from al Qaeda (and its spin-offs) as enemy combatants, protected by the Geneva Conventions or as unlawful combatants, who get to be treated as criminals.

Ali H Soufan, an FBI Special Agent for eight years, wrote about this issue in The New York Times on Thursday of this week.  He reviews the history and then talks about military commissions vs civil trials and comes down in favor of civilian trials for those who are involved in crimes on US soil.

Military commissions do serve an important purpose.  We are at war, and for Qaeda terrorists caught on the battlefield who did not commit crimes inside the United States, or who killed American civilians abroad, military commissions are appropriate.  But for terrorists like Khalid Shaikh Mohammed, who plotted to murder the innocent on United States soil, federal courts are not only more suitable, they’re our best chance at getting the strongest conviction possible.

I would like to associate myself with Mr Soufan on this.  That does not mean that I think the 9/11 Conspirators need to be tried in Manhattan.  We could try them in rural Western Pennsylvania for all I care.  Sure, we can try them with a military commission, and the Administration is again considering that approach, but I think it would be a step in the wrong direction.

I believe we should, as Serena Williams might say, "man up" and try them the regular way, in a civilian court.  It is the American way and while the defendants may mouth off in court, in the end it makes us stronger and the other side weaker.  And there is an other side.  To defeat them we have to show them as extremists totally out of touch with humanity and even with Islam, thus allowing the other 99.9% of Islam to marginalize them within their own community.

To put it another way, the use of terror to push the agenda of the al Qaeda extremists is not going to be defeated by us so much as by forces within Islam.  The use of US and other military force is necessary, but not sufficient.  This is "the long war" and it is for hearts and minds.  The whole of government is going to have to come together to win this fight.

Regards  —  Cliff