Last month, the effort to use military commissions in the war against al Qaeda quietly turned 10. A decade ago, President George W. Bush dusted off a plan last used by President Franklin Roosevelt and ordered the Department of Defense to convene tribunals that would handle the cases of non-citizens for "offenses triable by military commissions." The initial order was brief, but did suggest that such tribunals would have relaxed rules, admitting evidence that would "have probative value to a reasonable person."
As this was the first time in half a century that the US had proposed to use military commissions, understandable confusion arose. Commentators and politicians began a fierce debate about the nature of justice, the dangers of extraordinary tribunals, and the reach of international human rights law. To glimpse the nature of the intellectual battlefield, search "military commissions" in an online collection of law reviews, and limit the result to articles more than ten years old. Then take that limitation off, run the search again, and enjoy the flood.
From the beginning, proponents of military commissions (I was one) argued that this forum offered advantages. Unchecked by the Federal Rules of Evidence, commissions might hear evidence of horrific acts not directly related to the September 11, 2001 attacks. American survivors could tell their stories, but so could citizens of Indonesia and Turkey, London bus riders and attendees at Jordanian weddings. A global press, invited to record the first draft of history, could report these human tragedies. The ultimate fate of the defendants would be the commission's responsibility, but that was always a small part of the struggle. The larger ideological war could be fought in the commissions before a world audience. Prosecutors could demonstrate the shocking brutality that al Qaeda's philosophy demanded. This had been the driving objective of humanity's most important military commissions, the International Military Tribunal at Nuremberg that tried the leading Nazis after World War II.
There were also disadvantages. Nuremberg and its Tokyo counterpart, with their emphases on openness, were only one model of military commissions in the 1940s. The other model, exemplified by the commissions convened to try Germans who floated ashore in New York and Florida to wreak havoc on the US war effort, was remarkably secretive. The Federal Bureau of Investigation (FBI) quickly rounded up the saboteurs because one of them surrendered his colleagues. Knowledge of that fact might have emboldened German Chancellor Adolf Hitler to try this very expensive scheme again. Keeping the secret allowed the FBI to take credit for stopping these terrorists, and dissuaded Germany from future attempts. This precedent caused many commentators to fear that the current military commissions would be similarly secretive and unjust, offering up predetermined sentences (probably of death) to those caught in an international sweep. For years, the US had complained of regimes using extraordinary military tribunals for criminals, terrorists or dissidents. The sudden announcement that it might convene such new courts troubled many who were otherwise friendly to US interests.
Ten years later, the world has changed. Osama Bin Laden is dead. Al Qaeda is embattled throughout the world, no longer able to open training camps beneath the eyes of global satellites. An Arab Spring swept much of al Qaeda's former recruiting grounds, replacing rage over oppression with hope for a better future. These changes have made the Nuremberg-like public information advantages of the military commissions disappear. Global networks, both media and social, report atrocities far more effectively than an elaborate trial could.
The disadvantages, sadly, remain. A trial of major al Qaeda figures early in the last decade could have demonstrated their crimes to the world. Today, it would look stilted and unnatural. The world would see a group long held out of the public eyesight subjected to an unorthodox procedure. Any elements of secrecy that occurred, any exclusion of the press from the tribunal, would spur conspiracy theories and anger. The lesson that al Qaeda is morally bankrupt has already been learned. Much of the world might well conclude, on watching military trials, that the US lacks faith in its own judicial system.
The woeful reality of the past decade makes these disadvantages more painful. Despite early proclamations that military commissions would be faster than civilian courts, no military commission reached a conviction until more than five years had passed. That first conviction was a guilty plea, offered by a detainee to secure return to his home in Australia. More than another year passed before a commission reached a verdict in a contested trial. In August 2008, Bin Laden's former driver was convicted and sentenced. Before the end of that year, he was freed in Yemen. Commissions only convicted three additional detainees in what remained of the decade.
Yet the US still holds al Qaeda leaders, none more significant than the alleged planner of the September 11 attacks, Khalid Sheikh Mohammed. For them, federal courts remain a viable option. Both before and since 2001, terrorists have been tried successfully in federal courts. Omar Abdel-Rahman, convicted mastermind in the 1993 World Trade Center bombing, is serving a life sentence in federal prison. So is Ahmed Ghailani, convicted of the African embassy bombings. So does Richard Reid, convicted of attempting to bring down a plane with a bomb in his shoe. And so on.
When the disadvantages of a program outlive its advantages, it is time to end it. Once the dark shadow of World War II had receded, the US did not again convene military commissions. In later decades, when old Nazis were discovered in hiding, they were tried before ordinary courts. The process of teaching the world the evils of Nazism being done, such people needed only to be judged as individuals, against the normal standards of the law. It is time to do the same with al Qaeda. It is time to stop granting them the status of warriors, even illicit ones. As the judge in Richard Reid's sentencing said to him, "you are not an enemy combatant. You are a terrorist."
John Bickers is an Associate Professor at Northern Kentucky University Salmon P. Chase College of Law. He previously served in the Army for more than two decades as a Judge Advocate, he has been a prosecutor, a defense counsel, an administrative law attorney, a manager of a law office in Germany, and a teacher at the US Military Academy in West Point, New York. His writing has been quoted by the US Supreme Court and the US Court of Appeals for the District of Columbia Circuit.
Suggested citation: John Bickers, Military Commissions: No Longer a Useful Strategy, JURIST - Forum, Dec. 19, 2011, http://jurist.org/forum/2011/12/john-bickers-military-commissions.php.
This article was prepared for publication by Caleb Pittman, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org