The decision to try 9/11 mastermind Khalid Sheikh Mohammed and four of his co-conspirators in a US federal court instead of by military commission is symptomatic of the Obama administration’s strategic incoherence on counter-terrorism. Following widespread criticism of this decision — first announced in November 2009 — Attorney General Eric Holder has delayed a final decision on the venue. As the former Attorney General Michael Mukasey observed: “The back-and-forth…makes it look like amateur night down there.”
In the interest of national security and legal certainty, Obama should put an end to these embarrassing delay tactics and support trial by military commission for Khalid Sheikh Mohammed and his cohorts.
While many lawyers in the US and abroad have condemned military commissions as illegal creations of the Bush administration, these tribunals are fully anchored in US law and longstanding legal precedent. Created by an Act of Congress in 2006 and amended to extend due process protections in 2009, military commissions have been upheld by the courts and by the Obama Justice Department.
In fact, on the same day Holder announced his decision to try the five 9/11 conspirators in federal court, he also announced that the DoJ would seek military trials for five other Guantánamo detainees.
Al-Qaeda and its affiliates — with whom the US is legally at war — are not signatories of the Geneva Conventions, and routinely violate the laws of war by failing to distinguish themselves as combatants and purposely targeting civilians. Such parties are therefore ineligible for either the POW protections specified in the Conventions or the protections of the United States Constitution. On the international stage, this argument has been complicated by the Protocol 1 addendum to the Geneva Conventions, which extends PoW protections to belligerents who wilfully violate the laws of war. Yet although 168 countries signed on to this foolish treaty, the US chose not to ratify Protocol 1 on the grounds that it would encourage violations of the laws of war, and is therefore not subject to its terms.
The use of federal courts for terrorist trials also carries serious security and operational risks. The logical extension of such a policy must be that the capture, interrogation and detention of al-Qaeda belligerents complies with the rules of evidence and Miranda rights afforded to criminals in the US. In a time of war, such requirements would seriously compromise military and intelligence operations.
Certainly, some terrorist cases — for instance, US citizens accused of donating money to terrorist front groups — should be tried in federal courts. Yet to extend such protections to alien combatants in a time of war is not, as proponents of federal trials would argue, a vindication of the rule of law, but its misapplication.
The military commission system is not perfect. But instead of being honest about these challenges, the Obama administration has tried to have it both ways — appealing to the opponents of military commissions by granting war criminals federal trials, whilst availing itself of them when convenient.
This kind of hypocrisy has become a feature of Obama’s counterterrorism policies: he has retained and even increased the use of drone attacks, extraordinary rendition, detention without trial and warrantless surveillance, practices he unreservedly condemned under the Bush Administration.
Rather than establish a clear and sustainable legal architecture for the ongoing war, these inconsistencies create conflicting and corrosive precedents. By empowering the Attorney General to grant federal trials in some cases but not others, the government may be seen as undermining the very fair trial standards it claims to champion.