Terrorist trials in military courts

April 7, 2011 § Leave a comment

This week the Obama Administration announced it would back down from its decision to try Guantanamo Bay detainees in civilian courts, and would instead revert to the Bush Administration’s policy of using military trials. Supporters of the Bush Administration’s policy, like Texas Representative and chairman of the House Judiciary Committee Lamar Smith (R), argue that Obama is making the right choice. In Representative Smith’s words, “It’s unfortunate that it took the Obama administration more than two years to figure out what the majority of Americans already know: that 9/11 conspirator Khalid Sheikh Mohammed is not a common criminal, he’s a war criminal.” Alternatively, opponents of military trials are dismayed, arguing that America’s judicial system should be adequate for any crime, and that trying terrorists in military courts undermines the rule of law. The Obama administration’s decision, and the drama unfolding around it, represent the legal ambiguity of not only the detainees at Guantanamo, but of executive powers of war in an era of terrorism and violence sponsored by non-governmental organizations.

In response to the terrorist attacks on September 11th, President Bush not only began a war, but began what would be a decade long (and counting) debate on the legal status of citizen combatants, or terrorists. These individuals, labeled “enemy combatants” by the Bush Administration, have complicated the traditional laws of war. Prior to September 11th, individuals involved in combat would have a clear legal status as the combatants of a nation or state. If those individuals broke the law, they would be in violation of whatever international laws of war their state had agreed to through treaty (such as the Geneva Conventions). In Bush’s War on Terror, however, “enemy combatants”  are members of non-governmental organizations, Al Qaeda or the Taliban primarily, and because neither of these organizations are clearly states it is uncertain as to whether international laws of war apply to them (there is some debate as to the status of the Taliban, see here).

By declaring “war” on terrorism generally speaking, Bush acquired all the traditional executive powers of war, which, it turns out, are quite far-reaching and flexible. However, because “terrorism” is not a state, as would be the typical target in a war, the extent of executive power in this conflict, and the length of time in which it can be used, is uncertain. Because terrorism is more of a tactic or idea than it is a definable entity, it is unclear as to what victory in the War on Terror would be.

All of this uncertainty has fueled executive overreach throughout the War on Terror. Bush, and now by extension Obama, have been able to break the law or exercise power in areas traditionally under the purview of the judiciary or legislature. For example, the Bush Administration’s warrantless surveillance program in 2005 violated the 1978 Foreign Intelligence Surveillance Act. Additionally,the newly reimplemented military trials constitute a breach of the Geneva Conventions: the Conventions allow for military trials, but also guarantee the right to appeal to a civilian court (Article 106), “essential guarantees of independence and impartiality” (Article 84), the right to call witnesses (Article 105), and the right to confer with an attorney in private (Article 105) (The Geneva Conventions, 1949), none of which are allowed under the current military trials. By violating the Conventions, Bush undermined laws that constitute  basic principles of the rights of the accused in all democracies, and were meant to protect not only America’s enemies in war, but American soldiers in a time of war as well.

Proponents of military trials argue that using civilian courts to bring Guantanamo detainees to trial would risk the potential release of highly dangerous criminals, such as Khalid Shaikh Mohammed, who is accused of orchestrating the September 11th attacks. However, what would be the result of using a civilian court in this case? Either Mohammed would be found guilty and given due punishment as accorded by federal law, or he would be found not guilty and would be freed of indefinite detention at Guantanamo. Saying that Mohammed cannot be given legitimate civilian determination of his guilt because he is “too dangerous” is tantamount to declaring his guilt before a trial even occurs. Furthermore, allowing our executive branch to make this decision, even if it is at the insistence of certain members of Congress, is a violation of the balance of powers among the branches of our government. In the War on Terror, we have allowed our executive to declare war on what is essentially a military tactic and to unilaterally prosecute any individual who could be accused of association with that tactic. Obama, by caving in to political pressures and extending the Bush Administration’s legal tactics of the War on Terror, has exacerbated the situation rather than ending a decade of legal ambiguity and executive overreach.

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