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.

By using an existing system, we would not just be reaffirming our core American values, we'd also get better prosecutions. Right now, England refuses to recognize the commission system, with its attorney general calling them completely "unacceptable" because they fail to offer "sufficient guarantees of a fair trial in accordance with international standards." Australia has cut a special side deal with the Bush administration so one of its citizens, David Hicks, is treated differently from other commission defendants. A United Nations Expert Committee says these commissions are fundamentally unfair—a report that will prompt other nations to refuse to let their citizens be tried in these bodies. And extradition, sharing of prosecution/intelligence information, and availability of witnesses will all become extremely serious problems when other countries refuse to cooperate. Without an extensive track record showing that courts-martial are failures, it is exceptionally dangerous to gamble our prosecution strategy on the administration's diplomatic ability to persuade other nations to cooperate with these commissions.

Second, whatever purported benefits might be gained by some new system have to be weighed against the inevitable litigation risk. The Hamdan decision makes clear that any changes that depart from our nation's military tradition and international law are going to be closely scrutinized by the courts. The result of changing the rules again now will be another four years with no prosecutions and perhaps yet another reversal in the Supreme Court. "Four more years" is not a convincing slogan, especially when not a single terrorist has been brought to justice in these military commissions. Only about 10 individuals were ever even indicted—and those indictments took nearly three years to prepare.

Some clever Republicans are trying to get around that problem by legislating an "abstention" rule—providing that challenges to the new system can take place only after someone had their trial, not before it. This was the president's main position in the Hamdan case, as well—that Hamdan could not challenge his commission until he was convicted. Anyone, in Congress or the courts, who advances that ludicrous notion should be particularly ignored today. Can you imagine if that advice were followed? We'd have had each terrorist trial take place under the president's system, and then, years later, the Supreme Court would have had to reverse all the convictions when they finally got to decide Hamdan. A terrible result, for the nation and for justice. All these convicted terrorists would face freedom if they could not be retried in some other system.

Instead of abstention, any legislation enacted today should make clear that it would immediately authorize a challenge to a three-judge district court and subsequent appeal to the Supreme Court. It's time to get this show on the road, folks. The administration's "wait and see" attitude toward criminal convictions of terrorists is not something that can wait any longer.

Third, the Supreme Court got it right. The president's military commissions departed in every way from the most basic tenets of American justice. For the first time, defendants were kicked out of their own criminal trials without their consent. Even a military commission prosecutor called the system "a half-hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged." Another prosecutor lamented that "writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer."

Indeed, something that has gone without notice thus far is that every judicial opinion to side with Mr. Hamdan has been penned by a jurist who actually served in our military: Justice John Paul Stevens, Justice Anthony Kennedy, and lower court Judge James Robertson. A coincidence perhaps, but unlikely. For years, the military has stood at the forefront of protecting the rule of law, knowing that if our courts give the executive branch the power to break from the Geneva Conventions, then executives from other countries will do it back to our own troops some day when they are captured.

For that reason, and despite all the administration huffing and puffing about the court's Geneva Conventions holding, the Pentagon quietly last Friday issued a memo agreeing with the Supreme Court's interpretation of the Conventions and finding that Common Article 3, the provision at issue in Hamdan, now protects detainees across the globe.

Justice Stevens' opinion in Hamdan put it simply, "Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case." I would have thought that, upon hearing those words—and from a five-justice majority composed of three Republican appointees—the president's reaction would have been to ponder the oath he took to uphold the Constitution and laws of the United States. Instead, the administration treated this most serious of matters as yet another political game, with Bush going so far last Friday as to absurdly declare that the Hamdan justices "accepted the use of Guantánamo, the decision I made" with respect to detaining individuals there. That statement was particularly odd, since the Solicitor General's Office and I had both represented to the court that detentions were not at issue in the case, and the court itself made that fact clear.

When the president spins a Supreme Court opinion in this way, i.e., badly, you have to wonder what else is being spun. Bush's latest statement confirms my hunch that, like a college boy around the tempting Jessica Alba, whenever this administration gets near Guantanamo, they cease to think rationally. These folks cannot be trusted to run a new prosecution system. It's time for tough and fair justice, military-style. And that means the system we already have.

Neal Katyal teaches law at Georgetown University. He argued the Hamdan case before the lower courts and the U.S. Supreme Court.

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