Military Tribunal or Civilian Courts for Terrorists?

The recent decision to treat the perpetrator of the December 25, 2008, terrorist attack on a commercial airline flight as a criminal defendant, rather than an enemy combatant, again raises questions about the use of civilian courts for terrorists.

A foreign national enemy soldier in U.S. federal court, will not, in fact, receive all the constitutional rights of U.S. citizens.  Still they will receive more substantial legal protections than likely to be provided in a military tribunal.  Why then provide all the rights and process of U.S. civilian courts, rather than simply relying on military courts and justice?

The answer relates more to the failure of the Bush administration to effectively establish and use military tribunals than to the appropriateness of federal court for terrorists.  The Bush administration created secret prisons and harsh interrogation techniques but no workable process for judging enemy prisoners.  Under the circumstances, Republican criticism of the Obama adiministration decision to prosecute Abdulmutallab in civilian court is hypocritical.

This case is different in key ways from the case of the five Guantánamo detainees who will be tried in federal court.  For example, the government will seek the death penalty for the five Guantánamo detainees.  After the damage to the government’s reputation because of treatment of prisoners at Abu Ghraib, and questions about interrogation and legal authority for detention without trial at Guantánamo, the execution of these detainees without a traditional civilian trial would have arroused international outrage and significant domestic criticism. 

However, the December 25th attempt to destroy a plane as it descended towards Detroit failed, and no injuries resulted.  Thus, the government will likely seek incarceration, not the death penalty.  Moreover, Defendant Abdulmutallab has not been interrogated using enhanced techniques and his detention will be at the hands of the Obama administration, which has disallowed torture.  Therefore, the need to demonstrate the legitimacy of the process is lessened. 

The Bush administration proposed to deal with detainees outside of the civilian legal process, but parts of its plans were rejected by Congress and the courts.   After scandals at Abu Ghraib and questions about the administration’s treatment of prisoners and judgment in reviewing detainee cases without judicial oversight, the Bush administration lost some credibility in its role as authority over detainees.  This also cost the executive branch authority to use what should have been an ordinary process in time of war, the military tribunal.

The Obama administration has asserted that it will use tribunals in some cases.  For example, where evidence against a detainee is not sufficient to achieve a conviction in a civilian court, the administration will still seek to incarcerate people it believes are a threat, using a military tribunal.  Similarly, if a large number of foreign soldiers needed to be tried, it would overwhelm a civilian court, but be easily accommodated in the more flexible rules of a tribunal.

It makes no sense to try every enemy soldier in a civilian court. But the Obama administration will have to pick up where the Bush administration failed.  It will have to demonstrate to Congress and the courts that it can conduct military tribunals with the right mix of prosecutorial judgment and judicial process.

For now, the December 25, bomb attempt left an obvious trail of evidence and only one defendant.  This is an easy case for a federal court to handle.  Moreover, the defendent started providing information to the law enforcement officials immediately upon his arrest.  CIA or military intelligence officials could have been called in, but the defendent cooperated and provided detail immediately, according to the administration.  Under these circumstances, the administration’s decision to prosecute Abdulmutallab in civilian court was sound, although the greater challenge will come as the administration tries to prosecute some of the remaining Guantánamo detainees in military courts.

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January 6th, 2009, UPDATE:  In depth discussions on foreign policy and detentions on C-Span; President Obama discussing security issues.

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99 comments

Dan S.
Dan S.8 years ago

Since terrorists are self proclaimed freedom fighters and consider themselves as being part of an army, they should be judged in military courts in my opinion.
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Paul Puckett
Paul P9 years ago

Julia A, it is very difficult to forgive and more difficult to forget. It is also very difficult to not be angry at someone when you go through things like you describe. To go through what you describe and be able to feel the way you do now is amazing. I hope you know that!

There is a website that you may like for it's positivity and, if I'm not violating anything, I'd like to recommend it. Founded by Deepak Chopra's daughter, Mallika, the name of the site is Intent. Many very well known writers, some lesser known, with a focus on positive and daily intents. As in, what is your intent? You might like it!

Just put the traditional three W's before the word Intent and add the dotcom.

Your comment is an inspiration, thank you for sharing it.

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Julia A.
Julia A9 years ago

....I like that...., "Universal Laws"...... (thanx Paul)
if you think about it.... there is a reason behind everything, cause & effect apply to everyone & some forget this... if you were non biased you would be able to handle a situation a lot better, emotion should not get in the way of law, & it does, it influences decisions hectically... the man who raped me when i was a child has suffered an incredibly sad life, without a mother to love & nurture him, i understand him better because i know a bit about his life & where he is today, & i wish him no harm, i forgive him & hope he can forgive himself, i forgive the men who put a gun to my head when i was 7 months pregnant with my 1st child in an armed robbery, and hope they can forgive themselves... If we cannot ever stop the cycle of anger, hate & revenge we will never know PEACE and thats what i pray for everyday xxx Peace&Love xxx

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Lionel Mann
Lionel Mann9 years ago

Thank you again, Paul, for your reasoned replies. It is refreshing (and somewhat unusual) to receive intelligent response.

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Paul Puckett
Paul P9 years ago

Veronica F - I'm done with the discussion.


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Veronica F.
Veronica F9 years ago

Paul:

Ok, so tell me what countries constitutions DO specifically state that only its citizens are subject to its laws and the protections afforded them, but foreign criminals are not. You're treating terrorism as something other than a crime. Terrorism is against the law, right? Well, you commit terrorism, you commit a crime. Regardless if one terrorizes one individual, or 100 individuals, it's still terrorism. It is still a crime, regardless if committed by a U.S. citizen or not.

I will, again, point out that our system of justice has worked just fine prosecuting, and jailing, foreign criminals accused of terrorism in this country, just like every other civilized country in this world has done. I certainly don't remember the the right getting thier collective tighty-whitey's in a bunch when this very clear legal precedent was set years ago, especially when McFlightsuit did the same exact thing with Reid and Moussaoui, both of whom, are NOT U.S. citizens, who WERE prosecuted and convicted in U.S. courts, and who ARE in U.S. prisons.

The whiney wingnuts on the right lost all credibility on this issue when they were eerily silent a few years back. So, spare me the fake outrage, sport.

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Paul Puckett
Paul P9 years ago

Lionel, I don't think the US considers itself above or outside of International Regulations or Laws when it comes to the treatment of prisoners. I do believe that International Laws have not yet been drafted for Al Quaeda and other similar organizations.

No International Law applies to any country until that country ratifies or adopts that law. Sovereignty of all countries exists, although it isn't always respected. This thread is evidence that we really don't know, individually, what the laws are that apply. I suspect most journalists do not know either.

Like everything on this thread, just my opinion.

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Lionel Mann
Lionel Mann9 years ago

Thanks, Paul. You make some very valid points. However, I wonder why the U.S.A. considers itself outside international regulations for the treatment of prisoners.
Do not forget that the Nazis dubbed U.S. aircrew as "terrorists" and we later imprisoned any who had mistreated U.S.A.A.F captives, hanged any who had murdered them. In my War Crimes days I was personally involved in some cases. Too many Japanese P.O.W. camp guards were later executed for having mistreated and killed their captives. One man's terrorist is another man's zealot. Do you think that Bush, Cheyney, Rumsfeld, Rice & Co. have their cyanide capsules ready? It will be interesting to have qualified legal opinions on this issue. Doubtless no two will agree!

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Paul Puckett
Paul P9 years ago

Veronica F - Now that I'm on the computer, instead of a phone, I'll elaborate. First, to complete your analogy, if I forced myself on a Peruvian girl that would be rape and I would hope that the Peruvian gov't would provide swift and severe punishment under whatever court their laws deem appropriate.

The US Constitution is very clear in specifying the people entitled to rights under the document. Citizens of the US as defined by the 14th Amendment, "Born or Naturalized", neither of which applies to terrorist. The US has the right to try enemy combatants in whatever court they deem appropriate including a Military Tribunal. Your comparison of a rape to a plane bombing is not a valid comparison. Both are reprehensible, one is an attack on a person and the other an attack on a country.

US law does apply to anyone who commits a crime or an act of terrorism or an act of war within our country or against our forces in conflict. But the rights enumerated in the constitution do not apply to all. They apply only to US Citizens. To use your flawed analogy, a Peruvian Citizen who attempts to blow up a plane in the US has neither Peruvian or US rights. They do not have the right to remain silent nor are they presumed innocent. We do not live in a society controlled by some Universal law, at least not yet.

I'm done with the discussion. It was enlightening. The state of the US is possibly worse than many thought.

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Paul Puckett
Paul P9 years ago

Veronica

1 No Peruvian girl would ever come to my room
2 We disagree on who has rights in both the US and Peru and how they get them
3 I do not wear knickers

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