II. Abolish the Military Commissions and Prosecute Terrorist Suspects in Federal Court
President Bush issued a military order in November 2001 to establish military commissions for the trial of suspected foreign terrorists. Congress authorized a modified form of these commissions in 2006 after the Supreme Court found the original commissions to be illegal. Even as modified, these military commissions lack basic fair trial guarantees. As a result, they have been subject to extensive public criticism, legal challenge, and delay. Four military prosecutors have resigned in protest from the military commissions system, including the former chief prosecutor who has denounced the system as unfair.
Although some have defended the commissions as an efficient form of military justice, their track record in prosecuting terrorism cases has been abysmal. Since their establishment, the commissions have concluded only three cases, two after trials and one based on a guilty plea. During the same time period, the federal courts have tried more than 107 terrorism cases, obtaining 145 convictions. Several defendants have been sentenced to life in prison.
Some defenders of the military commissions argue that terrorism prosecutions do not effectively protect national security evidence, are too resource-intensive, and are insufficient to prevent future acts of terrorism because they are limited to punishing past crimes.
These criticisms are unconvincing for the following reasons:
- The Classified Information Procedures Act (CIPA) is effective in preventing the dissemination of classified evidence. CIPA gives the government wide latitude to provide the defendant and the jury substitute forms of evidence to protect against the disclosure of evidence and sources it needs to protect. It has been used in countless terrorism cases, allowing the government to introduce evidence obtained by foreign law enforcement and intelligence sources without compromising the integrity of those sources.
- Criminal prosecutions in federal court may be resource-intensive, but so are military commission proceedings.
- It is not true that criminal prosecutions are exclusively backward-looking, responding only to terrorist acts that have already been committed. To the contrary, prosecutions are often used to prevent the commission of terrorist crimes. The Department of Justice cites with pride its reliance on federal statutes that allow prosecutors "to intervene at the early stages of terrorist planning, before a terrorist act occurs." The crime of conspiracy, for example, is committed when two or more people plan to pursue an illegal act, and take at least one step to advance it, even if a terrorist act is nowhere near fruition. The same intelligence that allows investigators to identity and prevent terrorist plots should allow them to prosecute the participants for conspiracy.
- Under the Sixth Amendment to the US Constitution, a suspect facing criminal charges is entitled to a lawyer, who will generally tell his or her client not to talk to interrogators outside of the lawyer's presence. But many criminal suspects with lawyers end up willingly cooperating with interrogators-providing evidence that exposes criminal plots and implicates other lawbreakers-because by doing so they can shorten the prison time they face.
- Some have suggested that it would be difficult to prosecute terrorism suspects in US federal courts because much of the evidence against them is tainted by coercion, abuse, or torture, and would not be admissible in court. However, the solution cannot be to try terrorism suspects using procedures where such evidence would be admitted, particularly given the unreliability of such tainted evidence. There is ample evidence against many terrorism suspects at Guantanamo to build cases that do not rely on statements that were coerced. Indeed, Khalid Sheikh Mohammed and some of his co-defendants charged with planning and organizing the 9/11 terrorist attacks freely admit their roles in the attacks.
- Finally, using the civilian criminal justice system serves the additional value of treating terrorists as the common criminals they are. Terrorists, having political motivations, enjoy the heightened status associated with being an "enemy combatant." When Khalid Sheikh Mohammed appeared before a Combatant Status Review Tribunal at Guantanamo Bay, he wore the label of combatant proudly, comparing himself to George Washington and saying that had Washington been captured by the British, he, too, would have been deemed an "enemy combatant." Treating terrorists as criminals strips them of that badge of honor.
President Obama should put an end to the military commissions' failed experiment in flawed justice, and move all terrorist prosecutions to US federal courts, which have a demonstrated track record in handling terrorism cases in a manner that comports with fundamental due process and fair trial standards.
 Department of Justice, Counterterrorism White Paper, June 22, 2006, http://trac.syr.edu/tracreports/terrorism/169/include/terrorism.whitepaper.pdf (accessed Nov. 6, 2008), p. 3.
 "Verbatim Transcript of Combatant Status Review Tribunal Hearing for ISN10024," March 10, 2007, http://www.defenselink.mil/news/transcript_ISN10024.pdf (accessed November 6, 2008), pp. 21-22.