CommentaryJoshua L. Dratel [Senior Fellow for Legal Research, Center on Law and Security, NYU Law School]: "The advantages of federal criminal trials over military commissions for terrorist prosecutions are certainly too numerous to list in a few short paragraphs. However, seeking to avoid redundancy, there are three that merit mention, not only because of their importance, but also because they either are often touted as advantages of the military commissions, or escape attention or analysis by the popular media and its pundits.
For example, the transparency of criminal trials in the civilian courts is woefully underappreciated. The reliability and legitimacy of verdicts is completely undermined by secret proceedings, or those that limit public and media access (which has been a hallmark of the Guantanamo military commissions). Also, more specifically, the 2001 federal court trial of those charged with responsibility for bombing the US Embassies in Kenya and Tanzania in 1998 played an important role in revealing to the world — prior to 9/11 — al Qaeda's and Osama bin Laden's structure, history, ideology, and agenda, which in turn enabled the US to identify immediately and credibly for the world that al Qaeda and bin Laden were responsible for the 9/11 attacks. Indeed, as the end notes demonstrate, nearly the entirety of the 9/11 Commission Report's [PDF file] historical section on al Qaeda was gleaned from the transcripts of that Embassy Bombings trial.
In addition, while many fear that federal court trials will offer the defendants a "soapbox" for propaganda, that is a red herring on several levels. Federal judges control their courtrooms, and the terrorism trials in federal court, from the Embassy Bombings case through the trial of Zacarias Moussouai, establish that without question. In contrast, each session of the military commission for the 9/11 defendants in Guantanamo was marked by uncontrolled posturing by the defendants.
Also, Sheikh Abdel Rahman and Ramzi Youssef each spoke for more than an hour, espousing their anti-U.S. political philosophies, at their separate sentencings after their convictions in different cases more than a decade ago. Is there anyone who remembers a word of what they said? Even if they were memorable, are our institutions and values so indefensible and vulnerable that expression of al Qaeda's ideology will cause them to collapse?
Moreover, those who focus only on the defendants' potential use of public trials suffer from myopia. In many respects, it is the US that needs the platform of a public trial to assure the world that the process of adjudication is legitimate and reliable. After eight years of a steadfast policy of anti-law, whether manifested by uncharged, incommunicado, indefinite detention, military commissions, or institutionally organized and approved torture, the US must by its actions convince other nations — our allies, enemies, and those sitting on the fence — that it has returned to the rule of law.
For those who oppose the use of federal courts, the resort to military commissions falls into the "be careful what you wish for" category. Given the delays that have afflicted the military commission process — due to lack of clear and specific rules, the need to address threshold challenges to the system as a whole, and the logistical difficulties in creating an entirely new system in an unfamiliar locale — those who seek resolution and closure will have far longer to wait if the military commissions, rather than federal courts, are utilized. And even if years from now there were guilty verdicts in a military commission, those results will hardly be dispositive or final. The shadow cast over the military commissions' legitimacy, which in turn — in part as a result of reduced standards of evidentiary admissibility, and the potential use of evidence obtained via torture — impairs their reliability, will likely result in invalidating the results upon appeal. Certainly that has been the case thus far, and there is little reason to expect better under the revised commissions — the fifth iteration of a failed system.
The choice of military commissions over federal courts would have additional negative repercussions for US national security. Currently, the United Kingdom has at least a half dozen persons in custody awaiting extradition to the US. Some have been in that posture for 13 years, others for six, and others for three years or more. A significant obstacle to extradition is the European community's resistance to sending its nationals to the US to be subject to sub-standard justice and inhumane conditions in military commissions or as "enemy combatants." By perpetuating what the world recognizes as an illegitimate and failed system, the US threatens to reduce its allies' willingness to cooperate in counterterrorism investigations and initiatives.
These three factors, among many others, establish that federal criminal courts present a far superior choice to military commissions — even when evaluating the arguments that traditionally are offered by proponents of the military commissions."
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
