Posted Monday, June 9, 2008, at 12:28 PM
I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.
Here's what I just read. Story No. 1 in (take your pick) Newsweek , Time , the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek :
Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.
The ACLU's Hina Shamsi adds : "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.
Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here . Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.
Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?