The Wall Street Journal published a scathing editorial today blasting the military and civilian defense attorneys it portrays as unreasonably obstructing the capital military commission prosecutions of high value terrorists, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM). It is not surprising that a paper noted for its politically conservative editorial stance should defend the government's general approach to the so-called "War on Terror." But it is disappointing to see the editors of a paper that is generally well regarded for the basic quality of its journalism get so many points of law, history, and fact wrong, as well as to question the integrity of so many career military lawyers and judges. It is also ironic to see how far the editors have shifted their views on the role of law and justice since the time of the trial they hold up as a prototype. But more on that in a minute.
The editorial contrasts what it portrays as the relative ease with which the Roosevelt Administration got eight Nazi saboteurs tried and "most sentenced to hang" within two months during 1942, implying that the seven year gap between the events of 9/11 and the trials the government is rushing to begin next month is due to defense counsel. Aside from the basic fact that the Nazis were electrocuted, not hanged, the Journal neglects to mention that in 1942 the FBI assumed that the saboteurs would be tried in federal court and faithfully complied with all existing constitutional criminal procedure requirements. Two decades before Miranda, the Nazis were informed that any statements they could make could be used against them, yet all eight voluntarily confessed in non-coerced interrogations, and provided the information necessary for the government to recover a treasure trove of physical evidence in terms of sabotage equipment and explosives they had buried on the landing beaches. While the trial did proceed expeditiously, it was fundamentally fair.
Today the situation is quite different. After first holding the detainees incommunicado for several years at CIA "black sites" where they were subject to extremely coercive interrogation, if not outright torture, they were only transferred to Guantanamo in the fall of 2006 as political leverage to compel Congress to enact the Military Commission Act of 2006 (MCA). It took the government almost another year after that to get new military commission procedures and the necessary appellate court established, and it was only a few months ago that the government let it be known that it planned to finally charge these defendants. Despite these years to prepare on its side, however, defense teams have not even been allowed to begin adequate defense preparations! So it is simply unfair to blame the delay in these cases on the defense.
Curiously, in 1942 the WSJ seemed to appreciate the value of a robust defense. Despite an order from President Roosevelt foreclosing judicial review, the sabotuers' lead defense counsel, Colonel Kenneth Royall, took the lead in persuading the Supreme Court to assemble in a special July term to hear that one case. While the subsequent decision, styled as Ex parte Quirin ultimately upheld the trial, the very fact that the Court heard the case implicitly rebuked the idea that the President could foreclose judicial review. And of even more significance, the Court found that the constitutional authority underlying the commission belonged to Congress, not the President, laying the groundwork for the 2006 Hamdan decision and the subsequent enactment of the MCA. In a July 30, 1942 editorial entitled "A Constitution Still Governs," the WSJ editors opined:
"In war the laws are silent"--said Cicero some two thousand years ago . . . That it is not true today of this country appears strikingly in the extraordinary session of the Supreme Cout, which assembled yesterday to consider the "rights" of eight men on trial in time of war. The Court had but one question before it, namely whether or not the trial of these men was being conducted according to Constitutional provisions and principles, and in doing so gave the most convincing evidence that there is one law that is not silent . . . .
Our Constitution is based upon the principles enunciated in the Declaration of Independence, and all our civil liberties depend upon those principles. So long as the Constitution stands, those liberties are safe, even in a state of total global war. . . . If it can be invoked in aid of enemy spies in time of war, no citizen should fear for his own freedoms . . . .
The real danger to those liberties is not from without; it is from within and from some of our own citizens. So long as our people have faith in the principles that the Constitution exemplifies, no external political threat can harm. Unfortunately there those among us for whom these principles are no more than "myths and folklore." *
Now, however, the WSJ defends BGEN Thomas Hartman, who wants the prosecution to forego their ethical responsibilities to do justice and present evidence they know to have been obtained through unlawful coercion. While it sounds appealing to "let the judge decide," the reality is that restrictive discovery rules will make it difficult, if not impossible, for the defense to gather the true facts about how incriminating statements were obtained. Yet letting the judge decide effectively means that the defense will bear the burden of showing why evidence should not be admissible, something the government is in a position of being able to keep them from doing. The result is almost certainly going to be trials universally branded as kangaroo courts, and the adverse publicity will play directly into the hands of our adversaries. Instead of letting these defendants fade into the obscurity of prolonged preventive detention justified by the law of war, or giving them the fairest possible trial in a regular federal court, it is likely to turn them into highly visible martyrs. And while the possibility of actual prosecutions is remote, the commission proceedings offer the real possibility of turning the U.S. participants into war criminals for having denied an adversary a fair trial meeting international legal standards.
Perhaps inadvertently, the WSJ editors provide us with new evidence of just how flawed the Guantanamo process is. Recent suggestions by defense counsel that charges against the "20th hijacker" were dismissed over concerns about coerced evidence are all wrong they say. The real reason we know to be is that he was simply too peripherial to the main plot to be included in a trial with the likes of KSM. This seems odd given that the proper remedy would be simply to try him separately, not to dismiss otherwise valid charges. But more to the point, what does it say about the government if they share such core information with sympathetically minded journalists while withholding it from the defense who require it to do their jobs? Clearly these are political trials, not an attempt to do justice.
There is much to criticize about the entire military commission process and when their history is written these events will almost certainly rank alongside such cases as Dred Scott and Korematsu as true lowpoints in American legal history. None of that is the responsibility of the defense.
* I have not been able to find this editorial from any free source. I located it through ProQuest with the assistance of a Loyola Marymount University reference librarian where it is available for purchase for $4.95.
There is no "conspiracy" charge available in military law. Enemy soldiers are expected to plan and train for attacks. Unlawful attacks like 9/11 may be a war crime, but an ordinary soldier such as al-Qahtani cannot be prosecuted for his intentions. The others who were charged were part of the command unit and therefore participants in the attack. When al-Qahtani was refused entry into the country, he missed his opportunity to participate, and a military court cannot and will not charge him based simply on his intentions.
I claim no inside knowledge of the reasoning behind the decision not to charge al-Qahtani with a military crime. However, any competent military lawyer would know that no military charges apply to the case where a Private following orders by luck misses the opportunity to join his unit in the conduct of an illegal operation.
Posted by: Howard Gilbert | May 21, 2008 at 05:56 PM