Commissions vs. Courts: Abdulmutallab, KSM Rekindle Terrorist Trial Debate
Katie Glueck
The White House said Friday that it would move the trial of 9/11 mastermind Khalid Sheikh Mohammed (KSM) from New York City to an as-yet-undetermined alternative location. This announcement came after a bipartisan group of lawmakers called the decision to try KSM a few blocks away from Ground Zero dangerous, counterproductive and expensive. For the moment, he's still slated to be tried in the US, though options now include a military base.The KSM controversy is the latest development in the debate over whether terrorists should be tried in American courts or in military commissions established to deal with war criminals.
Last month, Umar Farouk Abdulmutallab, a 23-year old Nigerian with alleged ties to al Qaeda, tried to blow up a plane over Detroit with explosives hidden in his underwear. After 50 minutes of questioning on the day of the attempt, Abdulmutallab received his Miranda warnings and a court-appointed lawyer like any American citizen accused of a crime. Now, after the would-be terrorist stopped cooperating with interrogators, he is controversially slated to be tried in the American criminal court system.
The military commissions-versus-civilian courts issue is a key source of the tension between civil liberties and security in the war on terror. Below is a breakdown of the debate over how we should try terrorists.
Criminal or Combatant?
In a bipartisan letter sent last week to Attorney General Eric Holder, six senators argued that KSM and other terrorists should be tried in military commissions instead of civilian courts.
The purpose of these commissions, according to the Military Commissions Act of 2009, is to try "any alien unprivileged enemy belligerent." The act defines this person as an individual who has engaged in or supported hostilities against the United States or was a member of al Qaeda "at the time of the alleged offense."
"In the case of Abdulmutallab, he was clearly acting as an illegal armed combatant," said Gary Schmitt, a resident scholar and the director of advanced strategic studies at the conservative American Enterprise Institute based in Washington, D.C. "That was the dominant intent. If we have military tribunals and they're set up [to try enemy combatants], we ought to use them."
The commissions system allows for tougher interrogation techniques and more flexible admission of evidence. Detainees are, however, appointed an accredited lawyer. According to the act, they must also be aware of the charges brought against them. The first Military Commissions Act, passed in 2006, also prohibits the admission of evidence acquired through coercion.
But in the June 2008 case Boumediene v. Bush, the Supreme Court ruled in a 5-4 decision that this legislation, in addition to the Detainee Treatment Act of 2005, did not provide sufficient protection for detainees. The case also found that "foreign terrorism suspects held at Guantanamo Bay have constitutional rights to challenge their detention in United States courts," the New York Times reported.
While President Obama initially suspended the use of military commissions, he re-opened tribunal trials for a number of Guantanamo Bay detainees last May.
Critics of the commissions system say detainees held in places like Guantanamo are subjected to brutal treatment and aren't given warnings against self-incrimination.
Anthony D. Romero, executive director of the American Civil Liberties Union, said in a Jan. 24 press release that alleged terrorists should be afforded all the rights granted to any American citizen accused of a crime.
"To abandon due process in terrorism cases turns the rule of law on its head and flies in the face of the values that we are fighting to protect in the first place," Romero said. "Our criminal justice system is fully capable of accommodating the government's legitimate security interests while at the same time providing fundamental rights to defendants."
There is debate, though, over what rights should be extended to terrorists. Schmitt said we should not treat Abdulmutallab like an ordinary criminal because he could be withholding valuable intelligence.
"The whole point [of commissions] is if you're not treated as a U.S. person under the Constitution, then there can be a more extended interrogation," Schmitt said. "It doesn't mean that you don't eventually get a lawyer and it doesn't mean we have to water board. But there are other techniques for making prisoners talk that we've used in the past, that we can't use when you have a lawyer and Miranda rights."
The key question driving this debate is how one views terrorism. For Romero, it's a criminal matter, so terrorists should go through the criminal justice system.
"Terrorism is a crime," he said. "To treat terrorism that takes place far from any battlefield as an act of war is to propose that the entire world is a battlefield [and] to give criminals the elevated status of warriors."
But for others, America is engaged in a war on terror, and terrorism is therefore a war crime. Schmitt said it's important to remember the purpose of commissions: to try illegal enemy combatants, rather than American citizens accused of crimes.
"Enemy combatants are not American citizens," Schmitt said. "They're coming from abroad and under the guidance of what Congress and the American people decided. They're an enemy at war with us."
Mixed Messages
Ken Gude, the associate director of the International Rights and Responsibility Program at the Center for American Progress, a liberal think tank in Washington, said working through the courts is the most logical way to try terrorists.
"This is exactly the right place to try [Abdulmutallab]," Gude said. "He's attempted murder. Military commissions have never prosecuted a case of attempted murder. Criminal courts have thousands of those cases, including the shoe bomber case that was exactly like this one."
Gude also said that utilizing the federal courts doesn't compromise American security.
"Our criminal justice system has prosecuted many, many dangerous people -- Moussaui, Timothy McVeigh -- all of these people were prosecuted in federal criminal courts and were convicted," he said. "The notion that this gets in the way of justice or in the way of keeping us safe is ridiculous."
But for Schmitt, the concern isn't whether the courts are capable of handling terrorism trials. It's about the kind of message we send to those who wish us harm when we try Abdulmutallab, KSM and their ilk like American citizens.
"It's not the case that the civilian courts are incapable of trying terrorists. But to our enemies, it makes [terrorism] more inviting: if you don't succeed, the downside of the effort is pretty minimal," he said. "They read you your rights, you shut up and go to jail. You might have a long prison term, but that's different from knowing that you're going to be taken off, interrogated and treated in a much more aggressive fashion."