The prosecution of Guantanamo detainees has made strange bedfellows of Barack Obama and George W. Bush. And there is reason to view this week’s decision by the Obama administration to try five accused 9/11 conspirators before a military commission, and not in a civilian court as once planned, as confirmation that President Bush had it right all along.
But we don’t live in a black-and-white world. And if you look at the decision through the lens of the Constitution, you come to two grayer but truer conclusions: The Constitution can help us find the right answers to difficult questions, but seldom affords quick solutions. And while this week’s announcement spotlights executive and congressional power, it’s the role that the courts have played all along that has helped strike whatever balance we have now achieved.
Civil liberties and human rights groups this week voiced dismay, and conservative Republicans vindication, when Attorney General Eric Holder announced that Khalid Shaikh Mohammed and four other men accused of plotting the 9/11 attacks would be tried before a military commission at the Guantanamo Bay naval base in Cuba.
The head of the American Civil Liberties Union, Anthony Romero, told The New York Times: “The attorney general’s flip-flop is devastating for the rule of law.”
House Judiciary Committee Chairman Rep. Lamar Smith (R-TX) commented: “It’s unfortunate that it took the Obama administration more than two years to figure out what the majority of Americans already know: that 9/11 conspirator Khalid Sheikh Mohammed is not a common criminal, he’s a war criminal.”
Attorney General Holder himself, clearly frustrated by the decision, said that it was forced on the administration by stiff congressional resistance to transferring Guantanamo detainees onto domestic soil for trial.
Referring to a ban imposed by Congress last year that prohibits the military from spending money to bring detainees from Guantanamo to the United States, even for trials, Holder said:
“We must face a simple truth: those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their families who have waited nearly a decade for justice.”
What took so long?
President Bush established military commissions to try accused terrorists two months after the 9/11 attacks. He claimed sweeping powers as commander-in-chief, arguing that no legal process was due the detainees and that federal courts lacked jurisdiction to hear any case arising from the Guantanamo detentions. But the Supreme Court thought otherwise, and between 2004 and 2008 issued a series of opinions limiting presidential and congressional authority over disposition of the cases.
The Court established the principle that the rule of law requires some legal process for the detainees, but the Constitution is vague about just how much.
Controversy over the scope of military commissions dates back more than a century, and the legal precedents cut in different directions. In 1866 the Supreme Court ruled that a man accused of agitating for the Confederacy during the Civil War could not be tried before a military commission when civilian courts were open and accessible. But during World War II the Court upheld commission trials of eight accused German saboteurs, six of whom were executed.
Whatever fate awaits Mohammed and his co-conspirators, we know that it will now unfold in a military courtroom at Guantanamo Bay. But the ultimate verdict on the military commission trials that take place there may yet rest with the federal court system, which is where our constitutional history suggests it belongs.