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November 19, 2009


Eric Chen

Professor Nacos,

I'm willing to give the benefit of the doubt to my fellow Stuyvesant HS and Columbia alumnus, AG Eric Holder. As has been pointed out, eg, Ramzi Yousef, there is precedent of successful prosecution in the same venue.

From there, the critics' misgivings are fair, though, and will be until the rationale and rules governing the trials are clearer.

Obviously, we are at war, albeit a different kind of war. Taken to one extreme of traditional criminal procedure, 'discovery' poses the risk of exposing, and possibly rendering ineffective, tactics and techniques that are best kept secret from an intelligent learning enemy. The conferring of civil rights upon non-American terrorists is also questionable and messy.

Taken to the other end, will the government, in order to protect its tools in the midst of an on-going war, impose restrictions transferred from the 'military tribunals' model? Doing so would risk corrupting the civilian court, which the Bush admin tried to avoid; to wit, my understanding of why the Bush admin so laboriously crafted a 'military tribunal' model was the recognition that the distinct conditions of this war against transnational stateless revolutionaries should not be forced into either a civilian setting nor a court martial setting. To do so would harm either setting or the war effort, so it would be better to craft a separate trial model.

Related, there is necessarily a strong element of 'show trial' in this because we are at war. War is a competition in which the outcome is either victory over the enemy or defeat by the enemy. As such, if a guilty verdict is preordained for this 'battle', it is desirable to limit the secondary legal effects to a distinct military tribunal. A cornerstone for criminal court is the presumption of innocence, where civil liberty restrictions are imposed upon law enforcement agencies and guilt must be proven beyond a reasonable doubt. What if, as highly unlikely as it may be, KSM or another terrorist is found not guilty because a prosecution case based upon war fits poorly into a civilian court? Or what if, because we are at war, the Obama admin tailors the criminal trials to ensure guilty verdicts, thereby creating the very corruption of the civilian court that the Bush admin tried so hard to avoid?

Related, that the Obama admin is retaining the use of both civilian trials and military tribunals on a case by case basis places the legitimacy of both in question due to inconsistency. On that count, the Bush admin tried to maintain clarity by advocating for a uniform consistent legal procedure. Because the Obama admin has opted against a uniform legal procedure, it must do a far better job of clarifying the rules. Or else, we'll have a lose-lose situation: our counter-terrorist operators will be confused and hesitant, and the wider perception of the illegitimacy of the trials will be worse than if the Bush admin model had been followed.

Re your point about perception, I doubt at this point that the semantical label or setting of the terrorists' trial by the US - or any Western nation - is a determining factor of the perceived nature of the War on Terror. After all, we didn't send a task force of FBI, DC Metro and NYPD cops to Afghanistan after 9/11. Before then, President Clinton fired Navy missiles into Afghanistan, not fly cops over to lob tear gas into the al Qaeda camps. In other words, Professor, it may be a different kind of war but it's still a war - that horse long ago left the barn.

Timely and appropriate, from Salon.com -
Phil Carter's resignation from key detainee policy post:

The "inaction" that you say happened "during" the Bush admin can partially be blamed on partisan political obstructions that seem even more cynical now that the "secrecy, human rights violations, legal maneuvering" have largely been adopted by the Obama admin. Like much else in the War on Terror, the Obama admin seems to have circled the block and arrived at decisions remarkably similar to their predecessors' decisions.

I suppose it's the presidential version of growing up, where once-rebellious children now dealing with the stark real-world responsibilities of their parents find themselves adopting a worldview very similar to that of their once-disrespected parents.


I agree--I would not give any terrorist the satisfaction to be treated like a soldier in an army involved in military conflict between states. Washington's rationality is that contrary to KSM and the other four guys, certain detainees at Guantanamo were apprehended during the wars in Afghanistan or Iraq on the battle field and that therefore these guys are "enemy combatants."
It just shows how convenient linguistic choices can be in politics as elsewhere.

Ki Hoon

Hi Professor Nacos,

I agree with your claim that a military tribunal would give them military legitimacy, which is what is definitely not in the interests of the United States.

I have a question though. Why is the United States okay with trying these terrorists in a civilian court and not a military tribunal, but refusing to do so with prisoners at Guantanamo Bay? I mean, if the government legitimately believes that they are terrorists, just like Khalid Sheik Mohammad, then doesn't it make sense, legitimacy-speaking, to try them in a civilian court, as well?

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