Obama's Military Commission Disaster
Shayana Kadidal
Posted: May 15, 2009 11:16 PM Military trials are, for people living in countries with histories of military rule, redolent of their own periods of dictatorship. Whatever Americans become convinced of regarding their fairness, no one abroad will regard them as any different than President Bush's two rounds of commissions.
That loss of confidence threatens to erode the willingness of ordinary people in foreign countries to work with American law enforcement as their eyes and ears on the ground--just as the same phenomenon happens in our inner cities. It also has the potential to erode the willingness of foreign governments to work with us. Recall that Spain announced after 9/11 that it would not extradite suspects to face trials in the first set of military commissions (the ones created by President Bush in November 2001), and that other European countries have delayed extraditions while assurances were sought that the defendants would be tried in the civilian criminal justice system. Contrast the experience immediately after 9/11, where the trial of the East African embassy bombers in the federal criminal courts in 2000 built the public record necessary to convince the world that simultaneous attacks were a hallmark of Osama bin Laden's organization--and thus allowed the United States to successfully assign blame to Al Qaeda and build a coalition rapidly to intervene against them in Afghanistan. In short, the use of military trial systems threatens our national security.
There are more profound issues of perception at play as well. Recall that in the spring of 2007, when Khalid Shaikh Mohammed, the admitted mastermind of the 9/11 attacks, first had an opportunity to defend himself before a military panel (his CSRT), he expressed regret for the deaths of civilian women and children on 9/11 but said, essentially, "that's what happens in war, as you Americans well understand." Placing him before a military court for his trial plays into his desire to portray himself as a military figure engaged in a political struggle with the United States--exactly how he wants to be seen in the Muslim world--rather than as a mass murderer. Ironically, Obama met with 9/11 families just after announcing a policy that will allow their murdered loved ones to be portrayed as "collateral casualties" in a military conflict. The 9/11 planners seem likely to plead guilty in whatever forum they are tried in. The question that needs to be asked now is not whether they will be convicted, but rather what meaning the (worldwide) public will take from their convictions.
What could have provoked President Obama and his advisors to go down this road? Were technical legal concerns at work? Was it "double jeopardy" concerns--did the fact that defendants were charged and juries empanelled before the commissions mean that essentially the same charges could not be brought in domestic court? Not at all--the fact that all commissions offenses required an extra element of proof means this would never have been a problem under the "all-elements" rule. Was it a statute of limitations concern--the idea that too much time had lapsed since 9/11 for charges to be brought in ordinary criminal courts? Again, absolutely not: the limitations period in which an indictment must issue is 8 years for most transnational terrorism offenses, and we are months away from the 8-year anniversary of 9/11. (In fact several current commission defendants are also subject to standing indictments in federal court.)
http://www.huffingtonpost.com/shayana-kadidal/obamas-military-commissio_b_204197.html
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