Military Tribunal or Civilian Courts for Terrorists?

By Marc Seltzer; originally published on January 6, 2009, at

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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 as 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 administration 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 aroused 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, there is not the same need to demonstrate the legitimacy of the process as there was with the Gauntanamo detainees.

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 defendant started providing information to the law enforcement officials immediately upon his arrest.  CIA or military intelligence officials could have been called in, but the defendant 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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