Now can we try using courts-martial for enemy detainees?

The law, lawyers, and the court.
July 11 2006 4:41 PM

Invent This Wheel!!!

Now can we try using courts-martial for enemy detainees?

Military guard at Guantanamo Bay 
Click image to expand.
Military guard at Guantanamo Bay

Today the Senate begins hearings on whether to create, from scratch, a new legal system to handle the cases against suspected terrorists held at Guantanamo Bay and around the world. The hearings are a response to Hamdan v. Rumsfeld, the Supreme Court decision that last month struck down President Bush's fake trial system at Guantanamo. This debate is important, and long overdue, but it should not obscure the fact that the military already has a battle-tested system for dealing with such problems: courts-martial. We should only break from that proud American tradition for the best of reasons and with adequate empirical support. There are no such grounds here, and changing the rules now will be another fruitless step backward from our goal of bringing terrorists to justice.

Ever since the morning of June 29, when the Supreme Court announced its decision in Hamdan (I argued the case in the Supreme Court), I've received dozens of inquiries asking how it feels to be vindicated after five years of battling the military courts at Guantanamo. I testified at the first Senate hearing on the issue in November of 2001, and I concluded then that President Bush's then-two-week-old decision to adopt military commissions to try the detainees was flatly illegal. The ultimate result, I said at that time, would be reversal by the courts with no convictions.

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So, I'd be lying if I said it didn't feel good, five years later, to have predicted the result in Hamdan. I've also learned, though, that I was wrong about one particular point back then: The fallback is not always a civilian trial. Instead of wasting its time resuscitating Bush's failed commissions, Congress should now do what it failed to do in 2001: Look seriously at the option of using courts-martial to try terrorists.

In 2001, I knew squat about the existing military-justice system. The debate at that time simply pitted civilian courts against the new Bush military commissions, with no other alternative considered. Civilian trials, with the heavy protections they afford criminal defendants and witnesses, pose risks to security, and if the administration wanted to make changes to that system, I testified that Congress had to authorize them. I believed then that the career officials in the departments of Defense and Justice had considered, and rejected, other alternatives to civilian justice before resorting to the drastic step of creating new commissions through presidential decree.

But the civilians running the new tribunal process cut out those individuals who best understood the laws of war—including the judge advocates general. There is no evidence that they even thought about using courts-martial, despite the fact that a statute on the books since World War I allows court-martial trials to punish terrorism.

It is not entirely surprising that they had a legal blind spot. Military law used to be a popular course a half-century ago in law schools, yet today many leading schools do not even offer it. The result is a deep bias against military law as well as civilians who think—to the extent they think about it at all—that the Uniform Code of Military Justice is a backwater system in which anything goes.

I've spent the last four years learning the truth. In 1950, Congress' adoption of the UCMJ revolutionized military law. It built a system based on fundamental respect for our nation's traditions as well as international law. The result was a military-justice system that is the envy of the world.

Some pundits, in the wake of the Hamdan decision, seized upon various purported problems with courts-martial and urged rushed legislation—the discussion of which began in earnest today in the hearings. But as I argued once in Slate, signing off on such a new court system would still be a grave mistake for three basic reasons.

First, the existing court-martial system is already tooled up to handle terrorism cases. We've had courts-martial on the battlefields of Afghanistan and Iraq. The "jury" hearing terrorism cases all have security clearances. Military rules already permit closure of the courtroom for sensitive national-security information, authorize trials on secure military bases far from civilians, enable substitutions of classified information by the prosecution, permit withholding of witnesses' identities, and the like. The UCMJ, in short, has flexible rules in place that permit trials under unique circumstances, and there is no reason to think that they cannot handle these cases today.

Moreover, a court-martial is a decidedly legal proceeding. Congress already has substantial law on the books authorizing and governing them. The Supreme Court has on countless occasions recognized and affirmed such proceedings. And they satisfy all the conditions the Hamdan majority found the president's commissions failed to meet.