On April 4, 2011, Attorney General Eric Holder reversed course by announcing that Khalid Sheikh Mohammed and the four other alleged 9/11 co-conspirators would be tried in a military commission. Shortly after taking office, President Barack Obama announced the suspension of all new military commissions. However, after a year of indecision, that policy turned 180 degrees. On March 7, 2011, President Obama issued new guidance on detainee policy: “The Secretary of Defense will issue an order rescinding his prior suspension of the swearing and referring of new charges in the military commissions.” Press Release, The White House, Fact Sheet: New Actions on Guantanamo and Detainee Policy, (Mar. 7, 2011).
Since the November 2009 announcement that the alleged 9/11 co-conspirators would face civilian federal court trials, intense public debate on where to try them has often focused on perceived practical problems. Mayor Michael Bloomberg said that trying the men in a civilian court in New York City would “cost an awful lot of money and disturb an awful lot of people.” See Michael Barbaro & Al Barker, Bloomberg Balks at 9/11 Trial, Dealing Blow to White House, N.Y. Times, Jan. 27, 2011, at A1. Supporters of a civilian trial trotted out examples of previous terrorists successfully tried and convicted in that very federal district courthouse. Federal courts convicted the Blind Sheik of conspiring to attack U.S. landmarks and Ahmed Ghailani of participating in the 1998 U.S. embassy bombings in Africa.
Beyond practical concerns, there are several procedural differences between a civilian trial and a military commission. For example, the right against self-incrimination protected by the Fifth Amendment is different under the Military Commissions Act (MCA). One military judge ruled that the MCA’s protection against self-incrimination applies “only at the proceeding itself,” not as a remedy for any pretrial statement. See U.S. v. Hamdan, 1 MC 112, 114–15 (2008). Further, several rules of evidence are different. The MCA allows hearsay evidence to be admitted. See 10 U.S.C. § 949a. The MCA also permits the use of evidence obtained through coercion if deemed reliable and in the interests of justice. See 10 U.S.C. § 948r. Finally, defendants in a military commission may not assert defenses or invoke rights based on the Geneva Conventions. See 10 U.S.C. § 948b(g).These differences, and others, lead to the legitimate concern that the military commissions will be struck down on appeal. Does the requirement of an impartial jury in the Sixth Amendment apply? Does the entirety of the Sixth Amendment apply? Does the Fifth Amendment apply? Are certain crimes legally triable by military commission? I do not purport to know the answers to these questions. While the answers to these questions are unknown, they must be answered before the 9/11 trial proceeds. However, that is unlikely.
It has been nearly three years since the convictions of Salim Hamdan and Ali al-Bahlul; however, their cases are mired in an appellate swamp. The questions raised in those appeals are of no small import. Hamdan’s appeal involves whether “providing material support for terrorism” is an internationally recognized offense under the law of armed conflict and whether the MCA violates the Equal Protection Clause because it affords fewer procedural rights than a similarly situated U.S. citizen would be afforded facing the same charges. The MCA only applies to noncitizens.
In United States v. Bahlul, CMCR Case No. 09-001, several issues are raised, including whether the First Amendment protects Bahlul’s actions in creating an al-Qaeda recruitment film, whether providing material support for terrorism can be tried at a military commission, whether material support is an ex post facto charge, whether the MCA is a bill of attainder, and whether the MCA violates the equal protection component of the Due Process Clause.
While the world awaits answers to these issues, these cases have not yet advanced beyond the Court of Military Commission Review, the first level of appeal. A second level of review by the U.S. Court of Appeals for the D.C. Circuit is de novo. Finally, it is likely these cases will be taken up by the U.S. Supreme Court. Instead of relying on a well-tested judicial system, the U.S. government is using an untested system that may not stand. For the family members of the victims of the 9/11 attack, and for the nation as a whole, justice will be delayed indefinitely.