| It is semantic trickery - the words are not untrue, | | | | Elements for Trials by Military Commission" was |
| however the "truth" is essentially the complete | | | | proposed under Bush, listing two dozen chargeable |
| opposite. When Administration spokes-persons | | | | offenses including attacking civilians, hostage taking, |
| defend President Obama's decision (through Attorney | | | | hijacking, etc. President Bush sanctioned military |
| General Holder) to try 9/11 terrorists in civilian courts, | | | | tribunals for six Guantanamo Bay captives, including |
| the sound-bite goes on to say that is just what | | | | one who technically had dual-American citizenship. |
| previous-President Bush had done with 300 terrorists | | | | Toward the end of the year, as a result of detainee |
| (or 190 or?). However, while the earlier terrorists | | | | cases proceeded through the civilian federal court |
| were indeed tried in civilian courts, the "truth" is that | | | | system, the Bush administration reversed its policy of |
| Bush had sought for military tribunals but was blocked | | | | denying detainees' access to attorneys. The rights of |
| by Congressional Democrats; then came a Supreme | | | | enemy combatants under detention was the subject |
| Court ruling that Congress was required to initiate | | | | of three appeals accepted by the Supreme Court |
| such a national-interest policy. The clear purpose of | | | | between November 2003 and February 2004. In each |
| the Obama supporters is to put quiescence upon | | | | case, the President's Authority under Article II of the |
| criticism of being soft on terrorism - in comparison to | | | | Constitution as Commander-In-Chief was pitted |
| Bush, (Behind the civilian-vs-military issue looms | | | | against the rights of detained persons. |
| national security concerns - that for seven years | | | | On December 30, 2005, the Detainee Treatment Act |
| after 9/11, under Bush, there had been no US-soil | | | | (DTA) was enacted. The DTA implemented revised |
| terrorist attacks, while there have already been three | | | | procedures for questioning and treatment of |
| attacks - with many US civilians killed - during | | | | detainees, and created procedural safeguards for |
| Obama's first year in office). | | | | Americans accused of improprieties during |
| First, Vice-President Biden said that Bush had tried | | | | interrogations. The DTA also mandated various |
| "300 terrorists" in civilian courts, then "more than 300" | | | | procedures for tribunals and a requirement of |
| a spokes-person said, then Obama said 190 - creating | | | | Congressional notification by the Pentagon regarding |
| interest in the true number - also the circumstances | | | | procedural practices. The DTA language, aimed at |
| (since there seems to have been little notice taken | | | | denying detainees access to federal court appeals, |
| of such an explosive political issue in past-year news | | | | did not stop the Supreme Court from deciding a case |
| accounts). Researching the issue shows that Obama | | | | involving the alleged driver of Osama bin Laden. |
| supporters are factually off-base in three significant | | | | In 2006, the Supreme Court delivered a major legal |
| considerations: apples-vs-oranges differences | | | | setback to the Bush administration, ruling in favor of |
| regarding the charges; the number of such Bush trials | | | | Hamdan: that a foreign detainee's rights were |
| versus the Obama plans; and the legal status of | | | | protected by the Geneva Conventions and were |
| military tribunals versus civilian trials between the Bush | | | | enforceable through the federal courts pursuant to |
| and Obama situations. | | | | habeas corpus procedures; that the President lacked |
| Apples-vs-oranges differences in the charges: | | | | the necessary Constitutional authority or specific |
| The claim that a large number of terrorists were | | | | Congressional authorization for the tribunals he |
| convicted in civilian courts by Bush is a significant | | | | created; and absent specific Congressional approval, |
| factual exaggeration - the large majority of | | | | the President was obligated to follow existing law, |
| defendants tried by Bush were not terrorists per se, | | | | including the laws of war, which include the Geneva |
| but were charged with giving support to terrorism | | | | Convention. |
| through financial or immigration fraud - not remotely | | | | Following the Hamdi ruling, comprehensive changes |
| comparable to Khalid Sheikh Mohammad or the | | | | took place regarding the handling of foreign detainees |
| others held at Guantanamo Bay, or the "underwear | | | | suspected of terrorist associations, the administration |
| bomber" - caught in attempting to kill U.S. civilians on | | | | asserting in 2006 that all suspected terrorists held by |
| behalf of al-Qaeda. | | | | the military or CIA would be handled in conformance |
| Number of such Bush trials versus Obama's plans: | | | | to the requirements of the Geneva Conventions, |
| Vice President Biden, Attorney General Holder and | | | | revising its Army Field Manual, prohibiting various |
| President Obama have made differing claims of a | | | | practices including lengthy solitary confinements, the |
| large number of terrorists (from 300 to 190) being | | | | aggressive use of dogs, and simulated drowning. On |
| convicted in the civilian justice system during the | | | | Labor Day weekend 2006, the government |
| Bush administration - the actual apples-to-apples | | | | transported the fourteen remaining foreign detainees |
| number of major Islamist terrorists - who have been | | | | from clandestine overseas sites to the United States |
| convicted in civilian courts - over seven years under | | | | military facility at Guantanamo Bay, among them |
| Bush (based on an analysis by New York University's | | | | Khalid Shiekh Mohammad. |
| Center on Law and Security) - is less than a dozen. | | | | As a result of the Supreme Court mandate that |
| The legal status of military tribunals versus civilian | | | | Congress approve of modifications to the tribunal |
| trials between the Bush and Obama situations: There | | | | process for Guantanamo detainees, intensive |
| have been three military-commission trials under Bush, | | | | negotiations between legislators and the |
| but the military-commission process was on hold for | | | | administration resulted in President Bush signing the |
| years due to court challenges working through the | | | | Military Commissions Act (MCA), into law on October |
| legal system - not really getting off the ground until | | | | 17, 2006. The law sets rules and standards for |
| 2008. President Obama's surprise announcement that | | | | military tribunals and places restrictions on certain |
| the most important terrorism detainee, Khalid Shiekh | | | | types of aggressive interrogation. This is the crux of |
| Mohammad and four others, would face trial in civilian | | | | the present issue of the presidential authority to hold |
| criminal courts, was a major departure from the Bush | | | | military tribunals rather than civilian courts for certain |
| administration. which had wanted to try all such | | | | detainees. This Military Commissions Act was also |
| individuals before military tribunals. | | | | signed by President Obama - thus, as a legal matter, |
| Khalid Shiekh Mohammad, considered the mastermind | | | | Obama can very well try all such detainees before |
| of the 9/11 attacks (killing almost 3000 New | | | | military tribunals. |
| Yorkers), was captured in March 2003 in a surprise | | | | After 9/11, the government prevailed in civilian criminal |
| raid in Pakistan. In addition to 9/11, Mohammad is also | | | | courts in some high profile extremist cases like the |
| believed to have played important roles in some of | | | | "Lackawanna Six" (al Qaeda terror training), airline |
| the most notorious plots and attacks since the mid | | | | "shoe-bomber" Richard Reid, al Qaeda member |
| 1990s, including the 2002 Bali bombings that left 202 | | | | Zacarias Moussaoui, attempted terror camp organizer |
| dead, the murder (beheading) of Wall Street Journal | | | | James Ujaama, New York City bridge bomb-plotter |
| reporter Daniel Pearl, and various airliner plots. In | | | | Iyman Faris, Al Qaeda supporter Jose Padilla, and |
| 2007, Mohammad, who had apparently been | | | | lesser figures like Jewish Defense League leader Irv |
| previously water-boarded, boasted of his involvement | | | | Rubin, and white supremacist Matt Hale. However, |
| in 9/11 and various other terrorist incidents during | | | | critics of civilian trial for the 9/11 bombers have |
| proceedings -before a Guantanamo Bay, Cuba, | | | | strong points in opposition: some crucial evidence |
| Military Tribunal. Late last year, he stated his desire to | | | | would be more likely available, as from more intensive |
| plead guilty, but did not officially do so. | | | | questioning (water-boarding, for example), classified |
| In the period after 9/11, an internal debate on the | | | | information and informants, or foreign sources. |
| status of captured detainees occurred within the | | | | Because of these factors, there also is undoubtedly a |
| Bush administration, with officials from the State | | | | greater likelihood of conviction in a military trial. In |
| Department and career military officers on one side | | | | addition, holding the trial in New York, blocks from |
| and the Vice President and civilian lawyers on the | | | | the World Trade Center, poses important security |
| other. President Bush had classified the detainees at | | | | concerns, with a severe impact upon the business |
| Guantanamo as "unlawful combatants", as opposed | | | | community for a long trial - as well as issues of jury |
| to prisoners of war. In June; government officials, | | | | selection. Lastly, a civilian trial is likely to be longer, |
| maintaining that the President had the power to hold | | | | more legally complicated, with greater propagandizing |
| such captives indefinitely (without judicial review or | | | | scrutiny by defendants and their supporters. |
| counsel), argued that the President had expansive | | | | In the view of many, war criminals should be tried in |
| authority to prosecute the War on Terror from his | | | | military commissions, as was created by Congress for |
| constitutional powers: as precedent, wartime | | | | that specific purpose. War criminals, particularly |
| exigencies plus the "Authorization for the Use of | | | | non-citizens like KSM or the underwear bomber, are |
| Military Force", passed by Congress shortly after 9/11. | | | | not entitled to civilian trials under the U.S. Constitution |
| (These positions, however, would be rejected later | | | | or the laws of war, and it seems dangerously naive |
| by the Supreme Court.) | | | | to act as if they were. |
| Many Supreme Court cases ensued over the issue, | | | | It is important to note that "protection of life" |
| particularly on how to treat American citizens such as | | | | precedes "liberty" in the Fifth and Fourteenth |
| in Hamdi v. Rumsfeld, and two companion cases, | | | | Amendments. One can hardly argue that the |
| Rasul v. Bush and Odah v. United States; it was also | | | | government is required to put citizens at risk of |
| decided in 2004 that non-citizen enemy combatants | | | | terrorist attack in order to provide "liberty" to |
| have a right to federal judicial review of habeas | | | | terrorists. |
| corpus petitions. In 2003, a draft manual, "Crimes and | | | | |