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Article Contributor: Michael Wall, East Carolina University
Updated: 8 April 2010

Page Outline:

1. Basic Facts
2. Arguments for Military Tribunals
3. Arguments for Civilian Court Trials
4. Where to Hold the Trials
5. A Few Trials to Know
6. What Is Washington Doing?
7. Sources

Basic Facts

Differences Between Military Tribunals and Civilian Courts

There are numerous differences between military tribunals and civilian courts. Among these differences:

• Convictions in civilian courts must be unanimous. In military courts, a unanimous conviction is not needed. ¹
• There are “lower standards for admission” of evidence in military tribunals. ²
• Decisions in military tribunals cannot be as easily appealed as they can in civilian courts. ³

Arguments for Military Tribunals

• Many Republicans (including Senator John McCain (R-AZ) and Senator Lindsey Graham (R-SC) argue that all terrorist suspects should appear before military commissions. ⁴
• Those that support military tribunals argue that civilian courts would give terrorists the opportunity to justify their cause to the world. ⁵
• Senator Lindsey Graham (R-SC) states that terrorists should receive “due process,” but that the court they are tried in should understand “they didn’t rob a liqour store.” ⁶ Those that support military tribunals believe that civilian courts would treat suspected terrorists like the common criminal.
• Those in favor of military tribunals argue that terrorists are “enemy combatants” ⁷ (Note: this term appears in numerous other laws, as well) and therefore should not be allowed the same Constitutional rights as others, nor should they be protected by the Geneva Conventions.

Arguments for Civilian Court Trials

• Those that support civilian trials state that civilian courts offer a wider variety of charges that can be brought against the suspect than do military tribunals. ⁸
• Furthermore, others argue that because many terrorists view themselves “as warriors in a giant struggle,” trying terrorists in a civilian court would make them appear more like “a band of criminals” ⁹ and therefore weaken their cause.
• Others argue that the public has the right to view the trials. ¹⁰ Military trials would be closed to the public.
• These individuals argue that anyone held in U.S. custody deserves to be protected by U.S. Constitutional rights.

Where to Hold the Trials

• The Bush administration used the term “enemy combatant” to refer to those individuals that are in custody for supposedly fighting with Al Qaida or the Taliban. ¹¹ According to the Bush administration, these individuals were also unlawful combatants because they “come from many nations, wear no uniforms, and use unconventional weapons.” ¹² As such, they were not considered to be protected by the rules of the Geneva Conventions. This would also mean that they could be tried outside the United States.
• If the trials are held in the United States, the suspected terrorists might be subjected to Constitutional right. Those in favor of military tribunals argue that these terrorists should not be protected by the Constitution.
• In order to “preserve our image to the world,” the Obama administration believes that full constitutional rights should be given to terror suspects, and they should be tried on American soil. ¹³

A Few Trials to Know

These cases show the problems of where to hold trials very clearly. While Rasul v. Bush and Boumediene v. Bush ruled that detainees at Guantanamo Bay have the right to invoke habeus corpus because Guantanamo Bay is under U.S. Control, individuals in truly alien territory may not be given these rights. ¹⁴

Rasul v. Bush (2004):

• The case started when fourteen individuals who were captured in Afghanistan were held in custody at Guantanamo Bay. These individuals challenged for the right to invoke habeus corpus. ¹⁵ When the case appeared before the U.S. Court of Appeals for the District of Columbia, it was ruled that aliens detained outside U.S. Sovereign territory may not invoke habeus corpus and that the matter fell outside the jurisdiction of the court ¹⁶. Ultimately, the Supreme Court decided that “federal courts have jurisdiction” over detainees held at Guantanamo Bay. ¹⁷

Hamdan v. Rumsfeld (2006):

• Salim Ahmed Hamdan, a Yemini citizen, challenged the military commission trying him. Hamdan argued that the commission did not have the authority to hear his case, and that he was not allowed “to see and hear the evidence against him.” ¹⁸ The United States District Court for the District of Columbia ruled in favor of Hamdan, stating that the military commission created to try him had, in fact, no authority to try him because the “presidential authority to establish military commissions”  only applies to prisoners of war covered by the Geneva Conventions. ¹⁹ After the U.S. Court of Appeals for the District of Columbia overturned the decision, the Supreme Court ruled in favor of the initial decision made by the District Court.” ²⁰ While this ruling invalidated the Presidential order of Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror (2001), it did not grant Hamdan the right to habeus corpus.

Boumediene v. Bush (2008):

• The case started after “aliens detained at Guantanamo” ²¹ challenged for their right to invoke a writ of habeas corpus. Originally, the District Court ruled that “because Guantanamo is outside the sovereign U.S. Territory,” the District Court did not have jurisdiction. Ultimately, The Supreme Court ruled that while Cuba does maintain sovereignty over Guantanamo Bay, the base itself falls under U.S. Control, therefore placing it in the jurisdiction of the United States. Because of this, the “aliens” had full right to invoke the writ of habeas corpus. ²²

United States v Khalid Sheikh Mohammed et al.:

• This is the trial of the self-professed mastermind of the September 11, 2001 attacks. Mohammed is charged with, among other things, attacking civilians, murder in violation of the Laws of War, and Terrorism. ²³. In November 2009, Attorney General Eric Holder announced that Mohammed would be tried in a civilian court in New York City. ²⁴
• New York City Mayor Michael Bloomberg initially supported the idea. Because of mounting criticism from the citizens of New York City, however, he is now against holding the trial there. ²⁵ Mayor Bloomberg argues that, among other things, the cost of security for the trial would “be too expensive and . . . hobble” the city. ²⁶ While initially supportive of Holder’s ruling, the Obama administration has since reconsidered holding this trial in civilian court. While the Administration had not made a decision as of March 5, 2010, National Public Radio has stated that “the Obama administration (is) inching closer and closer” to holding the trial in a military tribunal. ²⁷ This change by the Obama administration runs counter to his platform of closing Guantanamo Bay and trying suspected terrorists in civilian courts.

What Is Washington Doing?

There is much debate in Washington in regards to the controversy of terror trials. While this list is not exhaustive, a few of the laws and proposed bills are as follows:

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror (2001):

• Created on November 13, 2001, this order states that individuals that are “a member of. . . Al Qaeda” and have “engaged in. . . acts of international terrorism” against the United States will be placed under the jurisdiction of the Secretary of Defense if captured. ²⁸
• Furthermore, the act states in section 7 that “the individual shall not be privileged to seek any remedy. . . in any court of the United States.” ²⁹
• This act gave the President the authority to try suspected terrorists through military tribunals.

Military Commissions Act of 2006

• Created after the Hamdan v. Bush ruling, this ruling granted the authority of military tribunals to try unlawful enemy combatants. ³⁰
• In this act, unlawful enemy combatants were defined as “a person who is part of the Taliban, Al Qaida, or associated forces” or an individual who does not wear a uniform or follow the laws of war. ³¹ Also, these unlawful enemy combatants were not allowed to “invoke the Geneva Convention” in their defense.
• In 2009, President Barack Obama amended the act to allow suspected terrorists more protection against “hearsay or coerced evidence and greater defense access to witnesses and evidence.” ³²

Other Bills

In January 2010, Senator Lindsey Graham (R – SC), with support from other Senators, introduced a bill that would, if passed, “prohibit the use of funds” for the Department of Justice to try suspected terrorists in an Article III court of the United States. ³³

In March 2010, Senator John McCain (R – AZ), with support from Senator Joseph Lieberman (I – CT) and others, introduced the Enemy Belligerant, Interrogation, Detention, and Prosecution Act of 2010. This act proposes that an individual that is “captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States. . . shall be placed in military custody (S. 3081).” ³⁴

One of the platforms that President Obama ran on was the closing of Guantanamo Bay. He also ran on the platform that the military detention of these suspected terrorists is unconstitutional and that these individuals should be held in civilian prisons and tried in civilian court. In fact, on Monday, February 1, 2010, he proposed adding $237 million to the Justice Department Budget for fiscal year 2011 to build a prison for these detainees in Thomson, Illinois. ³⁵ While the goal of shutting down Guantanamo by January 2010 was not fulfilled, President Obama has proposed additional budget increases that could potentially help shut the base down. Among these budget increases are a proposed $213 million increase in funds to the Department of Homeland Security to help local and state entities with holding terror trials. ³⁶

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Sources