05 Mar KSM Heading Back to a Military Commission?
Wow! It’s not a done deal, but it sure looks like Khalid Sheikh Mohammed is going back to a trial before a U.S. military commission, the Washington Post reports.
President Obama‘s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.
The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.
I get the New York City thing, but I am not quite sure that other parts of New York wouldn’t have welcomed the trial. Sure, there are logistical problems, but I wonder if there isn’t also a reversal of principle here. Obama and Holder are going to have to swallow a lot of high-falutin language about the supposed irresponsibility of the Bush Administration on this stuff, if they do reverse themselves here.
Military commissions have been limited in this conflict to unlawful enemy combatants. The original MCA defined al Qaeda to be unlawful enemy combatants, but that definiton was dropped in the current revision of the statute. The judge in the previous commissions relied on that definition and therefore did not inquire further about whether defendants would be regarded as unlawful combatants under normal military law. So the first business of a new commission would be to revisit the question of whether, under the new legislative language, these particular defendants are unlawful enemy combatants over whom it has jurisdiction. Note that this distinction has nothing to do with the charges, or the nature of the crime, or whether they are terrorists. It is simply a determination of their military status at the time they committed the crime. The previous commission cases have been individuals captured in Afghanistan. Hamdan, for example, was a civilian (unprivileged) who participated in combat by transporting anti-aircraft missile on the battlefield. KSM, however, commanded the 9/11 attack. He clearly is a criminal and engaged in air piracy, and is subject to military trial as well as civilian jurisdiction. To call him an enemy combatant rather than a criminal… Read more »
I cannot remember Timothy McVeigh being described as unlawful combatant, nor anybody stressing the need to subject him to a military tribunal. Point is, ever since 9-11 anybody alleged to possibly, eventually hinder US interest is called a terrorist. No judicial review of that determination needed. On the sole say-so of the Supreme Leader.
Second, it already has been shown that those “normal” trials secured more convictions the past decades than the rogue military commissions. Merely following the statitistics would suggest a criminal trial is the preferred route.
Third, what exactly is the problem with putting alleged terrorists on trial? The US, and the entire planet, did it before 9-11, all other coubtries are doing it today. Why the brouhaha?Sorry, of course, giving KSM due legal proces will result in the end of the world as we know it. My bad.
When planning 9/11, KSM was in Kandahar and arguably was a high ranking officer in the Afghan army. When a civilian kills his wife he is a criminal and is charged in civilian court. When a soldier kills his wife he is still a murderer, but is typically charged in a Court Martial. KSM can be a terrorist, mass murderer, and air pirate. He is probably also a war criminal. He can be charged in civilian court or he can be charged in military court, but probably not both for the same crime. However, the air piracy charge (and the deaths of the crew and passengers of the planes) could be charged in civilian court as a violation of international treaties, while the death of civilians in the World Trade Center could be treated as a war crime (murder in violation of the laws of war) and charged in a military court. The problem with this discussion is that everyone seems to have a personal opinion about the way they would prefer to see KSM tried. The legal discussion should instead be about which system has the best jurisdiction over the charges, not which system is your favorite type of… Read more »
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“which system has the best jurisdiction over the charges” however is problematic isn’t it? The prosecutor has to evalutate what the evidence is for each of the potential charges and which is the proper jurisdiction. As the judge in the Padilla criminal case said here a couple of weeks ago, the government prosecutors kept taking evidence off of the table because it was unusable (tainted) and managed to come down to some minimum though serious charges. That way the Padilla arguments on treatment became irrelevant. With the Military Commissions I understand your “as applied” as opposed to “as written” view. But my sense of the whole development over three iterations (PMO, MC 2006, and MC 2009) is that a persistent undercurrent was to reduce the level of confrontation for intellgence reasons. And those intelligence reasons seem to be a dual use argument – true protection of sources and methods and true protection of those who tortured from having their process be addressed in a meaningful manner in a court. I see no “regularly constituted” here nor the kind of necessity of courts closed or in occupied lands. In fact, if you look back over the wide range of court process we… Read more »
A followup on the interrogation meme that is underneath this game (including congressional complicity in torture) on where to try them. I just was at Barnes and Noble and read Shoshana Johnson’s chapter on Interrogation about her ordeal when she was captured by the Iraqi army early in the War in Iraq. Interrogation, yes. Fear of torture or beating? Absolutely, she had been trained for that (SERE techniques). Actual torture or beating, no. She was given POW clothes, here medical conditions were dealt with, she was logged in a book (no ghost detainees) and held in a prison with no bugs and a bedroll. In other words, done by the book and civilized by the Iraqi Army. Not barbaric like civilians who took up arms or terrorists. Or YOO can guess who else.
Best,
Ben
Howard Gilbert said: “A Court Martial can try both lawful and unlawful enemy combatants and civilian enemy aliens who commit crimes against international law during wartime.” -and- “The MCA and its subsequent amendments envisioned this option. Unlawful enemy combatants could be tried by commission; privileged combatants must be tried by Court Martial (although it can also optionally try unlawful combatants as well).” But according to David Frakt, former military defense counsel for some Guantanamo detainees: “Article 31 of the UCMJ applies only to ‘persons subject to this chapter’ that is, [American] military personnel (or POWs being treated as POWs). Congress was very clear in the MCA that Article 31 did not apply to Guantanamo detainees (who have never been treated as POWs).” How would AG Holder get around that fact for current detainees if he switched from Judicial Branch trials to Executive Branch courts-martial, without first finding that all such Guantanamo detainees, who have long been held without the protections and rights of POWs, have been abused by their American captors in flagrant violation of law and treaty? Other than that, it does seem evident – though carefully never mentioned by the media or Congress – that regular, UCMJ-governed law-of-war… Read more »
UCMJ applies, among others, to: “(9) Prisoners of war in custody of the armed forces. (10) In time of war, persons serving with or accompanying an armed force in the field.” It is important to distinguish between “prisoners of war” and the subset of them who are persons protected by the Third Geneva Convention. For example, in its text the GC did not cover prisoners of war belonging to non signatory nations, nor does it cover spies and saboteurs, nor does it protect persons who belong to eligible forces but who refuse to abide by its provisions by not wearing a uniform, not carrying the required military ID card, and by not providing name, rank, and serial number when they are captured. Although the US maintains the position that persons detained in the current conflict may not be eligible for protection under the GC, the more direct point is that none of these detainees were captured in uniform, or carrying a military ID, nor did any give name, rank, and serial number. Even so, they might qualify if they demand protection under the GC, thus triggering an “Article 5” tribunal, but even when invited to do so, not one detainee… Read more »
With regard to this, Howard: “Even so, they might qualify if they demand protection under the GC, thus triggering an ‘Article 5’ tribunal, but even when invited to do so, not one detainee has claimed Geneva protected status.” Please note the following, from Salim Hamdan’s defense counsel in a proceeding in the Military Commissions at Guantanamo on December 5, 2007: “”MJ [Military Judge]: Okay. Well this is a very interesting question and I appreciate your argument. I am not sure what the answer is. Does the defense want to respond to that last question about section 948b subsection (g) [of the 2006 MCA]? CDC [Mr. Joe McMillan, civilian defense counsel]: Yes, Your Honor, if I may very quickly. Colonel Britt did indeed correctly anticipate the defense’s response to the question from the court concerning subpart (g) of 948b. The language of that subpart says, “No alien unlawful enemy combatant subject to trial by military commissions under this chapter may invoke the Geneva Convention as a source of rights.” It is indicated here–it is predicated that there be a finding of alien unlawful enemy combatant status, and indeed that is what the Article 5 status determination we asked for is designed… Read more »
I posted some information (in response to part of Howard’s last comment) which seems to have been trapped in moderation for more than 12 hours, so I wanted to get at least the following part of the comment – which is of more general interest with respect to the topic of Julian’s post – through separately.
John McCain filed a bill, apparently last week, called the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” Its text is available here:
http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf
Among its provisions is Section 5:
“An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.”
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37—38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. [Supreme Court, Hamdi v Rumsfield]
The ability to hold enemy combatants as prisoners of war even when they happen to also be US citizens already exists under current Supreme Court decisions. The quoted section 5 simply provides the explicit Congressional authorization (long overdue) to a practice that the Supreme Court found in the Hamdi decision was implicitly authorized through the AUMF.
Nothing new here.
Anon: Now that your post has appeared, you are right. Hamdan did claim to be protected by the Third Geneva Convention as a POW, but not as an enemy combatant. He raised the claim that he was one of the two categories of “civilian accompanying the army” that are described in Article 4 of the Convention. The Military Commission under instructions from the appellate court entertained this claim, constituted its own Article 5 tribunal as a pre-trial phase, and found that Hamdan did not meet either criteria under Article 4 for civilian POW status and Geneva protection. When I was talking about “name, rank, and serial number” I misspoke when I said that nobody had claimed Geneva protection. I should have said instead that “nobody has claimed protection under Article 4 of the Third Geneva Convention as a lawful combatant“, which is the usual meaning of POW. There are a number of members the 055 Brigade, front line soldiers in the conflict with the Northern Alliance, who were captured and sent to Guantanamo who should have qualified had they requested status. Hamdan himself had nothing meaningful to do with the Brigade. The problem is religion. Under a Taliban interpretation, Shari’a… Read more »
Hamdan did claim to be protected by the Third Geneva Convention as a POW, but not as an enemy combatant. -and- I should have said instead that “nobody has claimed protection under Article 4 of the Third Geneva Convention as a lawful combatant“, which is the usual meaning of POW. Huh?! What does this mean then, Howard, from the 2007 military commission transcript I posted, as spoken by Hamdan’s defense counsel McMillan: What the evidence shows [as elicited in that very proceeding and transcript] is that the Ansars were a lawful combat unit and accordingly as a member of that unit under the best case of what the prosecution showed, Mr. Hamdan would be entitled to POW status. … And what I have on the projector here is a highlighted section of the CMCR’s decision in United States v. Khadr from September. And there is a statement here indicating that the burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim, in this case Mr. Hamdan, who has asserted that claim. Which is thereafter further detailed as follows: MJ: What exactly do you claim your client’s status is? CDC… Read more »
Anon: In the quoted sections, Hamdan claims to be a lawful combatant (A1, A2, A3) and also to be a civilian accompanying the army (A4). In sections not quoted here, he also made claims under A5 (merchant marine or aircraft crew) and A6 (levee-en-masse). The problem with this kind of shotgun claim is that it throws logic out the window. You cannot simultaneously be an enlisted soldier (A1) and a civilian accompanying the army (A4). There is also the rather long non-sequitur about the 055 Brigade (Ansars). Although I would agree that they clearly qualify as lawful combatants, Hamdan never claimed to be a member of the unit. “The Commission has searched carefully through the evidence presented by the Defense, and finds nothing that would support a claim of entitlement to lawful combatant or Prisoner of War Status under options (1) or (2) above. While the Defense showed, through the testimony of Professor Williams that the Ansars were “members of the armed foreces of a Party” or members of a militia or volunteer corps “forming part of any such armed forces” there is no evidence that the accused was a member of the Ansars or any other militia or volunteer… Read more »