Law

Q&A: Trying Terrorism Suspects On U.S. Soil

Charles Swift, then a Navy lawyer, was among a team of attorneys who took the case of Guantanamo detainee Salim Hamdan to the Supreme Court in 2006. They successfully argued that the Bush administration's plan to try Hamdan before a military commission was illegal, violating the Geneva Conventions and the United States Uniform Code of Military Justice.

In response, a Republican-controlled Congress shortly thereafter passed the controversial 2006 Military Commissions Act, which rolled back the due process rights of detainees.

Swift, now a lawyer in Seattle, is traveling in Iraq and responded by e-mail to NPR's questions about detainee trials on U.S. soil and the state of military commissions.

On the perceived dangers of trying terrorism suspects on U.S. soil:

Anyone knowledgeable about al-Qaida operations will tell you that there is no increased threat posed to the United States by bringing some of the detainees to the U.S. for trial.

[Suspected terrorists] Ali Saleh Kahlah al-Marri, Yaser Esam Hamdi and Jose Padilla were held and, in Hamdi and al-Marri's case, eventually tried in the United States without any consequence. There have been no acts or attempts on the judges or juries that tried [Sept. 11 conspirator] Zacarias Moussaoui, the Millennium Bomber Ahmed Ressam [convicted of conspiracy to bomb Los Angeles International Airport in December 1999], or those involved in the first World Trade Center bombing.

Those who claim there is a danger in holding the trials in the U.S. actually have no evidence to back up that claim. Perhaps that is why it is so hard to disprove. If one does not need evidence to conclude a fact, no amount of evidence is going to convince the claimant to the contrary.

On questions about the U.S. government's ability to mount an evidence-based case in federal court:

As bad as the safety argument is, the evidence debate is even worse.

Under this argument, if the government has sufficient admissible evidence to prevail in federal court, then the case goes to a federal court. If the evidence admissible in federal court is insufficient to obtain a conviction, then the detainee goes to a military commission. If there is insufficient evidence for either a commission or a court, then the detainee potentially will go to a National Security Court, or must challenge his detention via habeas [corpus] and establish that he is, in fact, being held illegally.

Under each of the processes, unless sentenced to death, the detainee ends up in the same place — a prison cell.

In short, the more evidence the government has, the more process the detainee gets. Due process, however, cannot be based on how much evidence the government has. Due process must flow from the law.

On the legitimacy of military commissions:

A military judge recently remarked to me that as long as the process and rules of evidence [for military commissions] are inferior to federal courts, and cases are sent to commissions because of that perceived deficiency in evidence, the commissions will never be seen as legitimate.

If, instead of evidence or a perception of danger posed by the detainee, one bases the decision [on] what is the legally appropriate forum [to try detainees], the Law of War actually addresses the question.

Article 64 of the Fourth Geneva Convention dealing with occupations requires all persons detained by the occupying power to be tried by a non-political military tribunal sitting in the occupied territory.

So for the detainee that allegedly took part [in or] supported acts of sabotage and terrorism in Afghanistan, those persons should be tried exclusively in a military tribunal.

The problem with the commissions at the moment is that Congress politicized them by passing the 2006 Military Commissions Act after the Hamdan decision, rather than following the Supreme Court's holding that the commission's rules must comply with the longstanding Uniform Code of Military Justice, which is decidedly not a political court.

On whether commissions can be fixed:

If Congress fixes the problems created by the 2006 MCA [Military Commissions Act], then there would be no issue with using the military commissions to try detainees for crimes that occurred in Afghanistan, and the commissions would be clearly legitimate.

On the other hand, detainees that committed crimes outside the Afghan conflict, such as 9-11, should be tried in federal court.

[Note: a new 2009 Military Commissions Act signed Wednesday by President Obama as part of the national defense budget broadens due process rights available to detainees, but does not guarantee defendants the same rights they would be extended if tried by a federal court.]

Finally, those who are not tried must be permitted to challenge their detention through habeas. If they win, they must be able to secure their release.

In any event, even if habeas determines they can be held, all detainees should be released when the United States concludes hostilities in Afghanistan. In Hamdi, the Supreme Court found that participation in the Afghan hostilities was a legitimate basis for the detention of persons, but cautioned against extending detention further.

The administration would do well to heed that caution.

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