April 6th, 2012
12:30 PM ET

Guantanamo Bay justice on trial

Editor’s Note: Matthew Waxman is Associate Professor at Columbia Law School, and he is also a fellow at the Council on Foreign Relations and member of the Hoover Institution Task Force on National Security and Law. The following piece is his First Take, reprinted with permission from the Council on Foreign Relations.

By Matthew Waxman, CFR.org

On Wednesday, the Pentagon authorized a military commission trial at Guantanamo for Khalid Sheikh Mohammed and four others accused of orchestrating the September 11 attacks. The charges include murder in violation of the law of war, attacking civilians and civilian objects, hijacking aircraft, and terrorism. If convicted, the five suspects could face the death penalty.The headlines about this may sound very familiar. Back in 2008,the Bush administration had charged them in a military commission, but the Obama administration suspended the case upon coming into office. The Obama administration then planned to bring the case to a civilian federal court in New York, but congressional and local opposition forced it to shelve those plans.

This time the trial is likely to go forward, though it is difficult to predict what sort of trial it will be: Will KSM and his co-defendants plead guilty and seek to be executed as martyrs, or will they contest the charges? Regardless, it seems clear that in the court of world opinion, it will be the military commissions system and U.S. detention and interrogation practices that are on trial too.

The current military commissions system is much more robust and procedurally fair than the original system established by an early Bush administration executive order. Its rules, procedures and defendant protections have been improved significantly as a result of executive branch revisions, Supreme Court rulings, and congressional legislation. The current system now includes reforms to the evidentiary rules, for example, that the Obama administration proposed to and worked out with Congress early in 2009, and the military commission prosecutor's office has been working to make the system more transparent. Experience to date also shows that these are not at all the kangaroo courts some critics make them out to be.

However, a minimum level of public legitimacy at home and abroad is required for military commissions to be effective–not just legally effective in the short-term, but strategically effective in providing a viable counterterrorism tool while sustaining international counterterrorism cooperation. The Obama administration will therefore need to defend the system more persuasively and forcefully than it has.

While often briefly noting their appropriateness in some cases, senior Obama officials do not make the case for military commissions with the same vigor they employ, for instance, in defending other counterterrorism tools such as targeted killing. Indeed, the administration has been quite explicit in saying that its general preference is to use civilian criminal trials for Guantanamo detainees (an option that Congress has worked to block) rather than military commissions, and it has not explained clearly or consistently how it chooses between them or between prosecution and detention without any trial at all. The Obama administration's ambivalence about the military commissions system it inherited is perhaps understandable, but it shows–and those internal doubts may contribute to public cynicism and therefore become self-fulfilling.

The views expressed in this article are solely those of Matthew Waxman.

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Topics: Law

soundoff (11 Responses)
  1. George Patton

    What this Khalid Sheik Mohammed and four others won't get at this show trial is justice. These men have been tortured and humiliated to no end and in the end they will be executed. In fact, we should have shut down Gitmo ages ago and have sent these men to civil prisons stateside for a real trial.

    April 6, 2012 at 4:50 pm | Reply
    • USMC Forever

      I fully agree, George. The military prison at Guantanamo Bay in Cuba is a national disgrace and sticks out like a sore thumb! If those bozoes in Washington aren't going to try these suspected "terrorists" in a civil court and free of torture, maybe the best thing they can do now is to turn them loose!

      April 6, 2012 at 7:19 pm | Reply
      • Rz

        Let's not get too hasty gentlemen. Any trial is better than no trial. It would be something worth watching, but somehow I don't think they'll be doing a public broadcast. Who knows.

        April 6, 2012 at 7:59 pm |
      • Josua

        you guys are paranoid. ayonne one who doesn't accept your claptrap doesn't do their research or is stupid. I am tired of hearing this and am more tired of your scant and piecemeal evidence to support this bizarre charade that you use to explain misfortune and your own inability to fit in with civilized society

        April 23, 2012 at 8:46 pm |
  2. j. von hettlingen

    Indeed, Guantanamo seems to be the only option, as an effort to bring the case to a civilian federal court in New York, met congressional and local opposition. But why now? Does it have anything to do with a presidential election? And what are the chances of a fair trial?

    April 7, 2012 at 4:03 am | Reply
    • USMC Forever

      To answer you last two questions j. von hettlingen, to the first question the answer is yes it does as Obama hopes to be reelected this fall and to the second, none at all!!!!!!!!!

      April 7, 2012 at 8:17 am | Reply
  3. Benedict

    Waterboarder,do you consider youself as a fair means of interrogation in the war on terror?

    April 7, 2012 at 7:20 am | Reply


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    April 8, 2012 at 12:35 pm | Reply
  5. matt c

    Like many issues conducted by the Obama administration, look for the orchestra (trial) to convene post-election.

    April 8, 2012 at 2:04 pm | Reply
    • Patrick


      April 9, 2012 at 8:09 am | Reply
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    April 10, 2012 at 2:04 pm | Reply

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