The Trial

Remarkably big news week last week in U.S. law and security matters – alas one that happened to coincide with the final week of our law school semester. So with apologies for belatedness, I wanted to catch up on a few things I missed, starting with the military commission trial of some of the accused conspirators in the attacks of September 11. I have yet to read an account of the opening day that thought it went at all well. Andrew Cohen’s description at The Atlantic I thought was well done.

So a friend poses the question – given the defendants’ intransigence, their determination to be disruptive, defense counsel’s many objections, the extraordinary public attention, the widely known fact that defendant Khalid Sheik Mohammed was tortured, and so forth – would things really have gone any differently had this trial been in a regular criminal court in, say, New York City. It’s a good and fair question. And I think the answer is – yes, things likely would have gone differently. And it has nothing to do with the differences in commission vs. criminal court rules.

Criminal defendants act out and/or refuse to participate in their defense with some regularity. In Article III courts, as in the Southern District of New York, where the Administration once planned to pursue the prosecution, judges have, and regularly use, a range of lawful tools to keep order in the courtroom. Federal judges are able to do this because they are aware such tools are available; their experience tells them they can work; their sense of the judicial role includes an understanding that their job is in part to help ensure the smooth administration of the process; and their confidence in the judicial system – and their knowledge of the public’s at least general confidence in the system – makes it possible for the judges themselves to feel confident in their own power to exercise a reasonable, constrained degree of professional discretion. I cannot picture a 13-hour arraignment in SDNY.

The presiding judge in the military commission trial, Col. James Pohl, has, according to press accounts, presided over previous military trials. I can completely believe in Judge Pohl’s good faith, and even assume every decision he makes is within the letter of the law. And I still come away thinking this trial is a bad idea. The policy argument against military commissions – that they’d never be perceived as just/legitimate given their deeply troubled past – is not just an argument about what the rest of the world thinks. It’s an argument about how the knowledge/fear of that perception is likely to skew everything that happens inside the courtroom. Col. Pohl is as conscious of this as the rest of the courtroom players. They all share an inescapable handicap. They all have something to prove.