JURIST Guest Columnist John Bickers of Chase College of Law, Northern Kentucky University, says that for all the attention being paid to the procedures proposed for new US military commissions, how those procedures are used – who is to be tried, and when – is a far more vital issue…

Since President Bush’s September 6 announcement of his draft legislation governing military commissions, considerable ink has been spilled over the nature of the proposed procedures. Foremost among them have been the discomforting refusal of the administration to rule out the introduction of substantive evidence outside of the presence of the accused. This proposal, rejected even by the senior military leaders of the armed forces, may well not survive Congress. Even those endeavoring to execute the commissions argue that the procedures must be improved in several other ways to bring them into compliance with U.S. and international law. Yet it is possible that all of the discussion over what procedures should be used misses a far more vital issue. It may be that how any procedures are used—who is to be tried, and when—reflects a strategic choice more vital to the United States than narrower questions of what sort of review system is appropriate, or whether hearsay should be admissible.

As the nation has grappled with our new enemy, it has been painfully clear that al Qaeda is not interested in adhering to the limits of the Law of Armed Conflict. The nations of the world, which developed those rules to mitigate the most terrible effects of war for its most helpless victims, have witnessed the results. We struggle not against a nation with whom we can ultimately seek peace, but against a criminal organization.

There are two distinct models for attacking a criminal enterprise of this kind. In what might be called “the Untouchables” strategy, government forces seek a weak link in the organizational chain, a small fish. They hope to find someone who possesses limited power and limited liability, but knows about the internal workings of the organization. Pressure is put on that person, generally in the form of the stick of severe prosecution paired with the carrot of immunity or a favorable plea agreement.

The expectation is that the small fish will offer the prosecutors better information and even testimony. The government can then pursue ever larger fish, ever more important targets, until the leader of the organization is brought into a courtroom, and perhaps a prison. Along the way the trials will be stealthy: jurors will be secluded, witnesses will be protected, gag orders will be issued. The government will conduct a secretive campaign, as darkness offers many advantages while pursuing the big fish.

The other model is that conducted at the International Military Tribunal (IMT) at Nuremberg after World War II. There the prosecutions began with the most culpable defendants in the hands of the Allies. The first trial was an elaborate and high profile affair of almost two dozen men and a handful of organizations. Prominent lawyers of four nations served as judges and lead prosecutors (the United States sent the Attorney General for the former role and a Supreme Court Justice for the latter). Imprinted on the consciousness of the world since the IMT are the pictures of Robert Jackson at the podium, Herman Goering in the dock. The world watched on newsreels as the courtroom, crowded with judges, advocates, interpreters, and spectators, heard witness after witness and read document after document. Even in the grainy films that exist the impression a viewer gets is of proceedings conducted under bright light.

Only after the original trial did other tribunals take up the problems of the lower level leaders, the rank-and-file who participated in the evils. By then, much of the glamour was gone, taking the press with it. There were thousands of trials conducted in what were accurately, if unpoetically, called the “Subsequent Proceedings.”

Any doubts about which approach the U.S. would use against al Qaeda evaporated upon the announcement that the first defendant to face trial by military commission was to be Salim Hamdan. Hamdan, a driver and bodyguard for Osama bin Laden, has never been alleged by any government agency to be a leader, a planner, or even a major operative. On the contrary, he is a neat parallel with the usual run of drivers and lookouts so often targeted in an incrementalist campaign to bring down a mob. His identity as a small fish was placed into stark relief by the pronouncements of the White House that three legitimate big fish had been seized by U.S. forces: Ramzi Binalshibh, Abu Zubaydah, and the man who is alleged to have hatched the 9/11 plan, Khalid Sheikh Mohammed (KSM). The Untouchables strategy took charge of the proceedings, while potential Nuremberg defendants sat in U.S. or allied custody somewhere, seemingly beyond the reach of both the rights they should have been accorded and the justice owed the nation and the world. Little argument was heard about the strategic choice, and the renewed discussion following the president’s announcement has not changed that. This was unfortunate: the competing strategies are based on sets of assumptions that are perfectly opposite, and the possibility that the assumptions did not fit the actual world went sadly unexamined.

The Untouchables strategy assumes a furtive, finite group. Its target has no real ideology beyond material reward. Although prosecutors may have extraordinary degrees of personal loyalty to overcome, they need not wean participants from any higher calling. In order to turn them, the economics of their position must be altered: the costs to the fish of remaining loyal must be made to be (or to seem) less than those of turning to the aid of the government.

The Nuremberg model makes an opposite assessment of its foe. It targets a group which may be bound by loyalty or personal gain, but at least in part functions the way that it does because it believes that it is in the right. Because it has a triumphalist ideology, coupled with an odious lack of regard for the value of the humans it victimizes, it is futile to fight it in secret. The group will make claims of its own righteousness in the sunny town square; it will hide its misdeeds in the darkness. If it can keep them hidden, it will continue to grow and attract new followers. In order to fight such a group, the Nuremberg strategy needs light. The press was not allowed into the workings of the IMT out of the generosity of the Allies. The press was the critical player.

Justice Jackson’s report to president made clear his belief that “the importance of this case is not measurable in terms of the personal fate of any of the defendants who were already broken and discredited men.” Rather, he thought, the lasting importance of the trial was that the demonstration of their crimes would “leave no ground for future admiration of their characters.”

The peril to the United States, and the world, in clinging to the Untouchables strategy is that it allows the al Qaeda ideology to continue to grow. Operatives and true believers can maintain innocence, even victimization by the United States. A Nuremberg model, a trial of senior personnel, and perhaps the organization itself, would expose to world view the cruelties of al Qaeda, their attacks upon innocents traveling, at work, and even in embassies. Such a trial, with evidence subjected to rigorous cross-examination, conducted before the international press and carried
on global television, would expose the deeds of men which might well leave no ground for current, or future, admiration of their characters.

In his speech on September 6, 2006, the loudest applause President Bush received was when he announced that KSM and the other high profile detainees had been turned over to the military and should stand trial by military commission. It may have been caused by a hope for justice for these particular individuals. On the other hand, it may signal hope that there is to be a transformation of trial strategy, a change from the pursuit of individual gangsters to an attempt to discredit before a world audience this sinister ideology. Perhaps it reflected the growing awareness that the importance of exposing al Qaeda to the light exceeds even the need for settling the cases of these broken men.

John M. Bickers is an Assistant Professor at Salmon P. Chase College of Law, Northern Kentucky University. He recently retired from the US Army Judge Advocate General's Corps.
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