Military Commissions: A Dangerous Precedent

By David K. Shipler

(Published in the Los Angeles Times Apr. 10, 2011)

The system of military commissions that will try Khalid Shaikh Mohammed and four other alleged 9/11 plotters contains a dirty little secret. Hardly anybody talks about it, but it's a key reason for concern as the apparatus becomes established.

It is this: The commissions can operate inside the United States, and they have jurisdiction over a broad range of crimes. Nothing in the Military Commissions Act limits the military trials to Guantanamo detainees, or to people captured and held abroad, or even to terrorism suspects. Nothing prevents the commissions from trying noncitizens, arrested inside the country, whom the president unilaterally designates as "unprivileged enemy belligerents." In other words, the law permits military officers to try non-Americans from Alabama and Arkansas as well as Afghanistan.


The Obama administration's decision last week to shift the high-profile 9/11 case from federal court is bound to move the military system toward legitimacy. The commissions lack the seasoned body of precedent that guides civilian courts, so their procedures will have to survive litigation by defense lawyers. But once the commissions gain stature and become the "new normal," every future administration will have a ready instrument to arrest, judge and sentence wholly within the executive branch, evading the separation of powers carefully calibrated in the Constitution. The judicial branch has no role except on appeal, where only the federal court for the D.C. circuit may review a verdict and sentence after the trial.

It seems far-fetched to imagine tribunals in San Francisco as well as Guantanamo, yet the law allows the spread of such a system, impeded only by officials' restraint. Atty. Gen. Eric H. Holder Jr. pledged Monday to restrict the use of commissions, but one official's good intentions cannot shield civil liberties from government intrusion. Restraint usually dies during spasms of fear over national security.

The framers saw that rights depend on structural bulwarks, not on particular officeholders. "All men having power ought to be distrusted to a certain degree," James Madison declared at the Constitutional Convention as he noted "the political depravity of men and the necessity of checking one vice and interest by opposing to them another vice and interest." The checks are being eroded here.

Because terrorism has fostered a concept of war as boundless and timeless, many crimes normally tried in civilian courts can be brought under the shifting rubric of war, granting military commissions broad jurisdiction. Provided the offense is committed in the context of "hostilities," defined as "any conflict subject to the laws of war," commissions may try a noncitizen on charges that include spying, seizing property for private use, taking hostages, rape, sexual assault, hijacking, mistreating a dead body or improperly using a truce flag or distinctive emblem, as well as murder, torture or material support for terrorism.

A trial has a truth-finding mission. Its accuracy is determined by a panoply of rights: to effective counsel, to summon and confront witnesses, to exculpatory evidence. These rights are weaker before military commissions than in courts-martial or criminal courts; although enhanced by 2009 amendments to the 2006 Military Commissions Act, they still allow certain hearsay and statements coerced during combat or capture. So the military commissions' findings may be less reliable.

But the truth may already be known in the 9/11 case. The accused are reportedly ready to confirm their roles in the attacks, not in a spirit of guilt but of pride. Their trial will be a pageant and a precedent, a rendering of the expected judgment and sentence — and then a legal legacy.

It is the symbolism, not the legal impact, that has been most vigorously debated. Yet it's the legal damage that is likely to remain long after the five are tried. Symbolically, a strange symmetry unites both the defendants and those in Congress who see a military trial reflecting the 9/11 attack as an act of war, larger than a common crime. Supporters of a civilian trial did not favor a different outcome but rather a different message — the display of a crown jewel in our constitutional democracy: the criminal justice system with its full array of individual rights.

Long after the verdicts and sentences, the plotters will continue to wound the country, now with American cooperation. If ultimately upheld by the Supreme Court, the elements of the military commissions will pass into the precedent of case law, creating a permanent apparatus, parallel to the criminal justice system, to prosecute and try foreign civilians. It could become a lasting injury of Sept. 11.