Why the government may lose the Guantanamo trials, even if it wins.

The law, lawyers, and the court.
Feb. 13 2008 6:38 PM

Out of Commission

Why the government may lose the Guantanamo trials, even if it wins.

Khalid Shaikh Mohammed. Click image to expand.
Khalid Sheikh Mohammed

On Monday, the U.S. military announced it had charged Khalid Sheikh Mohammed and five co-conspirators with murder and other crimes in connection with the 9/11 attacks. It further announced that the defendants would be tried by a military commission at the Guantanamo Bay naval base, rather than a regular civilian court, and that they would be eligible for the death penalty. The defendants have committed horrific crimes and will almost certainly lose at trial. Unfortunately, the military commissions will themselves be on trial as much as the al-Qaida six. And in this trial, the United States runs a serious risk of losing, even if it wins.

It is hard to exaggerate the difficulties the government faces in these trials. President Bush authorized military commissions more than six years ago, but the trials themselves have been delayed by objections from military lawyers and civilian critics, and by time-consuming legal challenges that often raise more questions than they answer. In 2006, the U.S. Supreme Court ruled that commissions violated the statute governing the military system of justice—leading Congress to enact new statutory authorities several months later. The new statute was widely criticized, and the Supreme Court will decide some of these complaints later this year. The court may invalidate parts of the new law governing habeas corpus review, but even if it upholds the law, defendants will raise countless new legal challenges to the nature of the crimes available in the commission and to the rules of procedure. We can be sure of nothing except that the trial (or not-yet-trial) of Khalid Sheikh Mohammed and his co-defendants will be in the news for many years to come. 

Even if the military commission survives further judicial review, these defendants will seek to undermine the court politically. They will make an issue of how they were treated, and will invariably allege torture. They will paint the commission as a kangaroo court, pointing to its relatively loose rules of evidence, the absence of a civilian jury, and restrictions on their ability to examine classified evidence used against them. They will use the trial as a platform to rage against America, just as Zacarias Moussaoui, Saddam Hussein, and Slobodan Milosevic did in recent years.

Because the government has chosen not to try these cases in a regular civilian court, these defense tactics will be hard to fend off. And if the judges clamp down and limit the defendants' ability to make speeches or introduce considerations beyond guilt or innocence, many observers will tend to infer that the case against the defendants is weak and the process unfair. But if the judges give the defendants free rein, they will drone on and on, not only to try to harm the United States, but also to assure themselves of a place in history and to delay their inevitable executions, like Scheherazade in One Thousand and One Nights. Milosevic provides the nonfictional model. His trial expired only with Milosevic himself, seven years after his indictment, and long before its anticipated conclusion.

Prosecutors and judges can avoid some of the worst of these outcomes by keeping firmly in mind the purpose of the trials. This is not so much to establish guilt—we suspect guilt will be easy to prove. The real object will be to tell the world—especially wavering supporters of al-Qaida in the Muslim world, where conspiracy stories about 9/11 continue to hold sway—a credible story about the defendants' involvement in the massacre of thousands of innocent people.

But the government can tell this story credibly only if it bends over backward to make the trials appear fair. So, for instance, regardless of what the military commission rules permit, prosecutors should build their case as much as possible around evidence that could openly be admitted in a civilian trial. And the judges should probably risk speechifying by the defendants rather than attempting to silence them. In the end, neither Saddam Hussein nor Zacarias Moussaoui earned new admirers on account of their courtroom antics, though Milosevic was more successful. 

But whatever approach the government takes, we can expect these trials to be messy and unsatisfying. Politically tinged trials always are, for defendants who consider themselves enemies of the state usually seek to deny the authority of the government to try them. The long history of such trials in the United States—including the trials of pro-Jefferson newspaper editors at the end of the 18th century, Civil War protesters, anarchists, conscientious objectors to World War I, Nazi sympathizers during World War II, and Vietnam War protesters—reveals a series of Pyrrhic victories (and occasional defeats) for the government. Invariably, many come to believe that the government is using the defendants—however unsympathetic they might be—to further its political goals. 

Do the potential benefits of trials in military commissions still outweigh the downsides we've enumerated here, or might civilian trials be a better route? The answer to this question requires a difficult-to-assess tradeoff between enhanced legitimacy in civilian trials versus enhanced security and flexibility in military commissions. There is, of course, a third way: long-term noncriminal detention of alleged terrorists because of their dangerousness. This last approach has been the one the government has used for most al-Qaida suspects to date, and it builds on the traditional power to detain enemy combatants during wartime. Such a system—if it were to be amplified and blessed by Congress—could serve as a legitimate legal basis for very long-term detention.

To be sure, continuing a system of long-term detention would have its own downsides: It would not afford a successful vehicle for telling the world the al-Qaida story, and it would not allow for the death penalty. But at least it would provide for continued incapacitation of suspected terrorists without the necessity of a full-blown trial that could be manipulated to al-Qaida's benefit.  

The current system of military commissions was originally designed to provide quick justice in ways that denied defendants the opportunities for propaganda available in the defendant-friendly civilian system. But six and a half years after 9/11, we have no concluded trials in a system that has little credibility, and that is still subject to ongoing legal review. And in the wake of so much criticism, review, and re-ordering, the government may now be forced to mirror, and in some respects even exceed, the procedural protections available in the civilian system, thereby compromising the very features that made military commissions so attractive in the first place. If we find ourselves, six years later, struggling with a system that is becoming a pale reproduction of the civilian criminal courts, it may be time to ask why we aren't using civilian courts in the first place. The answer to that question may leave nontrial detention as the only option, and not merely the best one.

Jack Goldsmith, a professor at Harvard Law School, worked in the general counsel's office in DoD from 2002 to 2003, and is a member of the Hoover Institution Task Force on National Security and Law. Eric Posner is a professor at the University of Chicago Law School and co-author of Terror in the Balance: Security, Liberty and the Courts