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.