Military Commissions: The Right Venue for KSM

[darrels joy]

Military Commissions: The Right Venue for KSM

Handling unlawful combatants in a military court is consistent with the Geneva Conventions and encourages compliance with the laws of war.

By KEITH J. ALLRED

Last week Attorney General Eric Holder announced that Khalid Sheikh Mohammed and other 9/11 conspirators may still be tried in a federal court in New York City. Why try these men in a major American city where they would require extraordinary security precautions and have a platform from which to spread their message? For that matter why should they but not other detainees be accorded the rights to a civilian trial at all?

The Geneva Conventions that comprise a substantial part of the law of armed conflict were debated and drafted in the aftermath of World War II, which left Europe and much of Asia in ruins and as many as 80 million people dead. Tragically, most of the dead were civilians and much of the damage was done to civilian property. The Convention drafters were clearly focused on preventing a recurrence.

Central to this weighty objective was a scheme for clarifying who could and who could not engage in hostilities and what could and could not be attacked. The drafters divided the field into two major categories: combatants and civilians. Combatants may engage in hostilities, civilians may not. Combatants may be attacked, civilians may not. To help make this division work in practice, combatants are carefully defined, and generally speaking they're the members of the armed forces of the nations at war. Everyone else is a civilian.

To enforce this scheme and to encourage compliance with the law of armed conflict, the Geneva Conventions provide both sticks and carrots to each group. Combatants are given immunity against prosecution for actions they undertake that comply with the law of war. If they are wounded or captured, they are promised prisoner-of-war status, including regular mail from home, religious services, and both housing and medical attention equivalent to those the detaining power provides for its own troops. If they are to be tried for any offense, prisoners of war must be tried in the same forum used by the detaining party to try its own troops. Lawful combatants captured by the United States, then, can only be tried in a court-martial.

Civilians have their own set of inducements. Their noncombatant immunity protects them from attack by those engaging in hostilities. At the same time, civilians are prohibited from actively taking part in the hostilities.

This prohibition is to avoid blurring the distinction between combatants and civilians, which might put the entire civilian population in danger of being caught up in the war and increase civilian casualties.

Khalid Sheikh Mohammed and his co-conspirators are not lawful combatants. They are civilians who actively engaged in hostilities in violation of the laws of war. Thus, they are "unlawful combatants" or "unprivileged belligerents." They are not entitled to prisoner-of-war status or to trial by court-martial.
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Associated Press Khalid Sheikh Mohammed







Unlawful combatants are entitled to be tried in a forum that meets the standards of the Geneva Conventions Common Article 3: a "regularly constituted court that afford[s] all the judicial guarantees . . . recognized as indispensable by civilized peoples." A military commission meets this standard, and trying unlawful combatants in a military commission advances important national interests in encouraging compliance with the laws of armed conflict.

Much has been said to impugn the military commissions as unfair, inadequate forums for the trials of these and other unlawful combatants.

But the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants. Congress understood this scheme when it established military commissions to try unprivileged belligerents, as contemplated by Common Article 3. Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war. This is a dangerous precedent, and there is no need for it.

Not only did Congress design military commissions with the express intent to advance the law of armed conflict, it provided a forum nearly as protective of the defendant's rights as a general court-martial. The differences between a military commission trial and a court-martial are now very small. The Military Commissions Act of 2009 has made the protections for unlawful combatants even stronger than they were under the 2006 military commissions. In addition, military officers are better positioned to hear and decide matters pertaining to the law of war than a civilian jury.

The president has suggested we need these trials in federal court because Guantanamo Bay has left a sour taste in the mouths of some of our allies. Even if this is true, selecting a few defendants to be tried elsewhere will not change that perception. But giving civilian trials to these worst-of-the-worst unlawful combatants upsets the important and longstanding Geneva scheme for encouraging compliance with the laws of war.

Ironically, a military commission provides unprivileged belligerents with a significant procedural protection they would not have in federal court.

After a conviction by military commission, the officers who entered findings of guilty also impose the sentence. The judge will advise them of the maximum sentence the president has authorized, and that they are at liberty to impose any lesser authorized sentence. By contrast, if the defendants are convicted in a federal trial they will be sentenced using the federal sentencing guidelines, which allow no such discretion.

Military commissions resolve the security issues that would attend a trial in New York City or elsewhere by taking place on a U.S. military reservation. They provide a forum that is nearly as protective of the defendants as the court-martial we use for the trial of American military personnel, and they comply with the laws of war and the Geneva Conventions. Military commissions are the answer.

Mr. Allred, a retired U.S. Naval officer, was appointed a military commission judge in January 2007. Between February of 2007 and August of 2008, he presided over the military commission trial of Salem Hamdan, the first war crimes trial since Nuremburg.

[darrels joy]

A Hamstrung Eric Holder Blasts Critics of Civilian Trials

By Chris Good
Apr 4 2011, 3:37 PM ET 1

As Eric Holder announced today that Khalid Sheikh Mohammed won't be tried in federal civilian court, where the administration had originally hoped to see him prosecuted, the U.S. attorney general appeared clearly displeased with how the political fight had gone.

"Let me be clear: I stand by that decision today," Holder said of his original assessment, made in November 2009, that a federal courtroom in Lower Manhattan should see KSM and his four alleged 9/11 co-conspirators prosecuted by Justice Department lawyers.


What had changed?


Aside from the pressure applies by conservative politicians and the objections of New York's top Democratic lawmakers, the administration faces a new restriction barring Guantanamo detainees from entering the U.S.

Congress passed the restriction as part of its most recent Defense authorization bill in December, and President Obama signed it in January, announcing in a signing statement that he would work to repeal the restriction.


Holder today suggested that the administration no longer had a choice of where to hold the KSM trial: Repealing those restrictions would take time, and a trial needs to start soon. "We simply cannot allow a trial to be delayed any longer," Holder said.

He did not mention the more likely reality: That the White House might not be able to repeal the restriction at all, and must instead wait for next year's Defense Department funding bill.


KSM's trial location has become the largest political dispute of Holder's tenure as attorney general, and one of the bigger points of political disagreement between the Obama administration and Congress as a whole.


In that context, Holder took to the podium on Monday not only to announce the new decision -- that KSM will be tried in a military tribunal at Guantanamo Bay -- but to blast those who criticized the notion of a federal, civilian trial.


"Those unwise and unwarranted restrictions undermine our counterterrorism efforts and could undermine our national security," Holder said of the ban imposed by Congress.


Congress, in essence, doesn't know what it's talking about, he went on to say.


Prosecutorial decisions such as this one "have always been and must always remain the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecutorial judgments, yet they have taken one of the nation's most tested counterterrorism tools off the table and have tied our hands in ways that could have serious ramifications," Holder said.


His suggested approach endured the "unfair and unfounded criticisms" of "too many people, many of whom certainly should know better, many of whom certainly do know better," Holder said.


"Sadly, this case has been marked by needless controversy since the beginning, but despite all the arguments and debate that it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points," Holder said.


In other words: Shame on you


http://www.theatlantic.com/politics/...trials/236672/