Commentary: An alternative to military tribunals?
It may be reading too much into a few lines of presidential rhetoric, but the Bush Administration appears to have a planned alternative if the Supreme Court should strike down the military “war crimes” tribunals at Guantanamo Bay, Cuba. President Bush, in remarks last Friday that have drawn little media attention, talked of trying some of the Guantanamo detainees in courts inside the U.S.
At Camp David, the President had just had a round of talks with Denmark’s Prime Minister, Anders Fogh Rasmussen, and the two of them then met the press. During opening remarks, the President said the following (taken verbatim from the White House transcript):
“The Prime Minister and I share values, and he spent time making sure that I understood his strong belief that when we fight the war on terror and we help new democracies, that we’ve got to uphold the values that we believe in, and he brought up the Guantanamo issue. And I appreciate the fact that the Prime Minister is concerned about the decision that I made on — toward Guantanamo. I assured him that we would like to end the Guantanamo. We’d like it to be empty. And we’re now in the process of working with countries to repatriate people.
“But there are some that, if put out on the streets, would create grave harm to American citizens and other citizens of the world. And, therefore, I believe they ought to be tried in courts here in the United States. We will file such court claims once the Supreme Court makes its decision as to whether or not — as to the proper venue for these trials. And we’re waiting on our Supreme Court to act.”
During the question-and-answer session that followed, reporters did not seek to draw out the President on what he meant. Only some advocacy groups, like the American Civil Liberties Union, have picked up on those comments, treating them — appropriately — as a considerable surprise.
It is highly doubtful than there have been leaks to the Administration about what the Supreme Court is about to decide in the case of Hamdan v. Rumsfeld (05-184), the constitutional challenge to the tribunals — formally, “military commissions” — that are preparing to try ten Guantanamo detainees on war crimes trials. So, the likelihood is that the Administration has put together a contingency plan, just in case that case goes against the tribunals.
Up to now, the Administration has rigorously resisted trials in civilian courts inside the U.S. In fact, that resistance was the main reason Guantanamo was set up, as a terrorist detention center under the control of the military. It may be that the President was not hinting at trials in civilian courts, but rather could have been referring to military courts — courts-martial. He did say “courts,” and not commissions, it may be worth noting. (UPDATE: At a press conference at the White House on Wednesday, the President spoke again on the subject, but was not much more specific, saying: “I’d like to close Guantanamo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle — in my judgment, handle these types of people is through our military courts. And that’s why we’re waiting on the Supreme Court to make a decision.”)
In the event that a contingency plan does involve plans for trials in the civilian courts, the Administration has a favorite venue — Alexandria, Va. It was in U.S. District Court there that federal prosecutors came within a single juror’s vote of obtaining a death sentence for terrorist conspirator Zacarias Moussaoui. And, in perhaps the most successful war-on-terrorism prosecution so far inside the U.S., the Department succeeded — in a bench trial in that court — in getting a number of convictions and long sentences for an alleged war training plot by paintball gaming in the suburban woods of Virginia.. That is also the court where now-Deputy Attorney General Paul McNulty, as U.S. Attorney, was in charge of a number of these prosecutions. And it is a court from which appeals go to the Fourth Circuit Court, which has rendered several key rulings in favor of the Administration in terrorism cases.
A plan for contingency trials outside the tribunals system, of course, may never be necessary. The Court, when it decides Hamdan, could do one of two things that would take away the need for an alternative. It could rule that Congress has taken away the authority of the Supreme Court to rule on Salim Ahmed Hamdan’s case, and it could rule, on the merits, that the military commissions are legal as presently set up.
With perhaps only a handful of decision days remaining before the Court recesses for the summer, the Hamdan case should be decided shortly. It will be decided by an eight-member Court; Chief Justice John G. Roberts, Jr., is not taking part because he sat on the Hamdan case as a D.C. Circuit Court judge.
Continuing political, and diiplomatic, pressure on Guantanamo, of course, could provide the impetus for an alternative to trials at the Cuban prison camp even if the Supreme Court rules in the government’s favor..
If the Supreme Court decides that the tribunals are unconstitutional and for whatever reason one of these guys gets acquitted in a civilian trial or is unable to be tried due to other concerns and American soldiers die as a result, the Supreme Court cannot expect that politicians or the public will be silent about it.
The Supreme Court should tread very warily in the area of warfighting.
Comment by federalist — June 14, 2006 @ 11:01 pm
Federalist: The Supreme Court should tread very warily in the area of warfighting.
Wait…it can’t be Federalist asserting that the Supreme Court is an weather-vane of politics!! I thought it was supposed to act according to principles at all times!!!
Comment by Commentator — June 15, 2006 @ 1:26 am
Before Fed gets his salivary and sweat glands all cranked up, let’s remember that all the Hamdan petitioners are asking for is a tribunal that follows court-martial rules. And also the saying (I would say mot but that might be construed as citing foreign law) that military justice is to justice as military music is to music.
Comment by r.friedman — June 15, 2006 @ 8:08 am
I wouldn’t be so sure that Bush knows the difference between a commission/tribunal and ‘courts here in the United States.’ The man isn’t one to pick up on nuances.
Comment by upagainstthelaw — June 15, 2006 @ 11:21 am
There was nothing nuanced about Kerry’s defeat.
Comment by Commentator — June 15, 2006 @ 3:57 pm
With respect to courts and warfighting, I make the following observations:
1) The Judicial Branch is the least qualified to make determinations with respect to fighting wars.
2) In WWII, the US military summarily executed German soldiers caught violating the rules of war. No one would have argued that such a practice was unconstitutional, nor would anyone have argued that those Germans would have had any rights to a US courtroom. What has changed since then to give terrorists access to our courts?
3) If the Court has the right to interfere in this area of warfighting, namely what we do with enemy (illegal) combatants, where else can it stick its nose? Can it make rules of engagement?
Comment by federalist — June 15, 2006 @ 10:56 pm
Are there not considerations other than the Court’s lack of warfighting qualifications, such as construction of Congress’ intent to authorize the executive in this nature (i.e., valid violations of the law of war), and the founding fathers’ desire to protect against over-extended executive power (with no checks? In any event, in my opinion, Clement’s arguments concerning the need for the executive to properly wage a war (and thus should deserve broad deference) was prety thin. Additionally, the WWII case was fought heavily on Constitutional grounds (read the dissent, it is powerful). On it’s face, the Court taking the case alone gave rise to rights of enemy combatants in US courts (in the sense that habeas goes to the legaility of one’s detention by the executive. However, (abstractly)I think the strongest argument for the government (from an originalist perspective) is that the Constitution gives Congress the ability the define and punish violations of the laws of war and they have excercised that power in the UCMJ (save testimony of the retired general, forgot his name) and preserved the common law military tribunal to try violations of the laws of war. Of course, that inherently doesn’t diminish judicial review (through habeas) of the Conspiracy charge. This would fit with Yamashita and Quirin (to which a reference was made. Broadly though, if you were caught up in the war on terror, wrongfully, what process would you want due.
Comment by ryang24 — June 16, 2006 @ 12:57 am
“Broadly though, if you were caught up in the war on terror, wrongfully, what process would you want due?”
I’d want a ton of due process. I’d also want, if I lived in a war zone, to be free of bombs, snipers and all sorts of attendant evils. The reality is that innocent people in war get hurt. It is simply unavoidable. And if a couple of innocent guys get swept up at GTMO, that’s war. We killed a little girl when we killed Zarqawi. Is court intervention thereforejustified?
Comment by federalist — June 16, 2006 @ 1:05 am
As to the original commentary. Do you think this may be a move by the Administration to soften the blow of a possible adverse decision against the government? It may be a political move, both to save face in the upcoming elections if attacked by the Dems, and to curry favor with the growing public sentiment against the war and the detentions. Bush does come off as more ‘cuddly’ now that he seems to be against the tribunals (may be a coincidence, but his language also appears more ‘Bush-like’ than normal when he spoke of these things). May be a sign he is trying to connect with his base, if one buys the idea that Bushisms are a way for him to appear more like a commoner–whatever that is.
Comment by ryang24 — June 16, 2006 @ 1:10 am
And the Executive Branch is the least qualified to decide to what extent habeas is suspended in a so-called time of war, or to what extent the Geneva Conventions apply, or which American laws and constitutional rights reach detainees on a US military base like Guantanamo.
I recall eight German saboteurs having access to a US courtroom in Ex Parte Quirin. It ultimately didn’t do six of them much good, but it was good to see that at least in a *real* time of war, American courts still attempted to dispense justice for more than just Americans.
If the Executive Branch has the ability to set aside any law it pleases, and effectively make its own rulings without the “interference” of the Judicial Branch, then where can it stick its nose?
Unfortunately, the answer to that is becoming increasingly clear: anywhere it wants. Private communications, Congressional offices, sovereign nations — you name it.
Comment by oyez-fan — June 16, 2006 @ 1:11 am
I think Barak’s comment is relevant here when he said (to an adverse decision reached by the court holding that violent interrogation of a suspect is illegal, even if doing so may save human life by preventing impending terrorist attacks),”We are aware that this decision does not make it easier to deal with [the reality of fighting terrorism]. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.” I’m quoting from an address by Hillary Heilbron, QC to the Civic Exchange, Hong Kong, delivered on the 21 October 2004.
Comment by ryang24 — June 16, 2006 @ 1:42 am