Cross-Examination March 2006

Justice Delayed

Why we still don’t have a way to put terrorists on trial
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Whatever happened to Zacarias Moussaoui?

Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, with opening arguments scheduled for early March, to determine his sentence.

Given the magnitude of the crime and the fact that Moussaoui, a French citizen of Moroccan descent, admits his guilt, he seems unlikely to be spared—though at the time of the attack, he was locked up on federal immigration charges. If and when he is condemned to die, all sides in the debate over the war on terrorism will likely claim vindication. The Bush administration will embrace the verdict as a big win. Civil libertarians will argue that Moussaoui’s conviction in a domestic, civilian court shows that the regular justice system is up to handling big-time terrorism trials. The administration’s critics will use the case to discredit the military tribunals the Pentagon has created at the Guantánamo Bay Naval Base in Cuba.

Don’t believe a word of it.

Why not? What will the real message of the Moussaoui trial be?

Moussaoui’s case shows only that American courts can try an al-Qaeda figure if the government lucks out. Moussaoui is a nutcase who tried to represent himself, filed crazed pleadings, and made ludicrous courtroom speeches in which he repeatedly compromised any potential defense by admitting to key elements of the charges against him—for example, that he was a member of al-Qaeda, pledged to attack America. For months, he refused to cooperate with his court-appointed lawyers. And when the judge took away his ability to act as his own counsel, he pleaded guilty—thereby relieving the government of the burden of proving a tricky case.

Despite the lucky breaks, if the government ultimately succeeds in getting the death penalty, it will have taken an extraordinary effort: five years of litigation up and down the appellate ladder, millions of dollars, and a docket so long that a mere computer listing of the public documents filed in the case takes up over 160 pages. The case exposed daunting problems in trials like these: how to handle massive volumes of classified information and, more particularly, potential witnesses whom the government is holding and interrogating overseas and refuses to produce for security reasons. A defendant more inclined to demand his rights and less inclined to turn the courtroom into a circus could have made these proceedings more difficult than Moussaoui did.

Trials in federal courts are the only option for U.S. citizens. For foreigners, however, particularly overseas, the government has more options. After Moussaoui, don’t expect high-value al-Qaeda detainees to be tried in American courts if the government can avoid it. One such case, of an al-Qaeda suspect named Ali Saleh Kahlah al-Marri, has already been dropped, with the defendant turned over to the military as an enemy combatant. Even while it claims victory, the government will test these waters again only if it has no choice.

The case’s larger lesson is that the administration was right after September 11 when it argued that it needs some alternative form of trial.

So you favor the military tribunals the Bush administration has set up at Gitmo?

Not at all. They’re a disaster too.

In five years, not a single person—not even a low-level al-Qaeda or Taliban criminal—has gone to trial. Only nine have even been charged. The whole process has been mired in a combination of bureaucratic bumbling and litigation.

Whose fault is this?

Largely, but not entirely, the administration’s. Part of the blame has to go to the Supreme Court as well. In 2004, the Court asserted jurisdiction over Guantánamo, opening the door to litigation that has further delayed the trials. This isn’t an entirely bad thing, since the pressure of litigation has made the tribunals (called “commissions”) fairer. But if your chief concern is establishing a regular system by which al-Qaeda operatives can face trial, the delay has not been helpful.

To this day, it remains unclear what legal standards the courts will impose, or whether they can even consider the matter. The Supreme Court this fall agreed to do so, but Congress has moved to strip the courts of jurisdiction over such cases, and it isn’t clear whether the Supreme Court will have to stand down. So it’s still not certain when any trials will actually happen, or even whether the current rules are lawful.

What is the administration doing with such people now?

Cold storage. There are hundreds at Guantánamo and an unspecified number at secret CIA facilities. This latter group includes the most important al-Qaeda people: September 11 masterminds Ramzi bin al Shibh and Khalid Sheikh Muhammad, for example. They have effectively been “disappeared.” This solves a short-term problem: it makes them available for interrogation. But it also creates huge problems for America’s public image and creates friction with allies as well. In the long term, it’s not a viable strategy.

But aren’t “secret prisons” exactly what the administration wanted?

In the short run, yes. But many people within the administration understand that it’s critically important to put terrorists on trial eventually. Yet the commissions so far have failed.

A big part of the argument for them was efficiency. As then White House Counsel Alberto Gonzales put it shortly after the onset of the war, such commissions “can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals.” Commissions would strip defendants of certain rights that can bog down proceedings in federal court, or even make them impossible in national-security cases. Defendants would have less right to confront evidence against them, making it easier for prosecutors to handle classified material or shield witnesses held in secret detention. Defendants could be excluded from certain proceedings. And the standard for admissibility of evidence would be lower, so that hearsay evidence and material collected in the rough and tumble of a shooting war might be considered.

This makes sense in theory: you don’t want a trial hamstrung, or a conviction blocked, because the government cannot establish the precise chain of custody of a computer disk picked up during a military raid in Kandahar or because a confession took place under circumstances that would not be appropriate for an American service member accused of a routine crime. Yet five years and endless pretrial litigation later, thousands of miles from Afghanistan, the commissions’ vaunted efficiency has turned out to be a myth.

So what went wrong?

The Pentagon tried to put together an entirely new legal system from scratch, with all the delays and difficulties that entails. It has not used military commissions since the World War II era, and those it employed then were so unfair by modern legal standards that the Bush administration was unwilling to revive them. Instead, the military has created brand-new procedures, offices, and rules, all of which its personnel are unfamiliar with, and the very existence of which is subject to legal challenge.

The irony is that the Bushies’ proposed solution—the commissions—was more fix than was really needed. Courts-martial, the system by which the military conducts trials for its own personnel, were available—and would have been a far better option.

Wouldn’t courts-martial have had some of the same problems that the civilian justice system has shown in the Moussaoui case?

Potentially, yes. Over the past few decades, military trials have come to provide extensive procedural protections for the accused. Defendants have more or less the same rights to confront evidence and witnesses as they do in federal court, and the standards of admissibility are similar.

The difference is that Congress could have easily modified the court-martial for terrorism trials to address these problems. Such modifications would have been uncomfortable from a civil-liberties point of view. But given the fact that aliens abroad have limited or no constitutional rights, a kind of “court-martial lite” would almost certainly have passed constitutional muster. Instead of coping with an entirely new and unfamiliar justice system, the military could be using a system it employs every day, with adjustments that would come into play only in certain cases.

Why has the administration insisted so tenaciously on commissions instead?

Partly to establish an ideological point: al-Qaeda people aren’t entitled to trial by court-martial, the criminal process used for honorable soldiers. International law guarantees this privilege to prisoners of war. But unlawful combatants—fighters who don’t conduct themselves according to the laws of war—are entitled only to trial by commission, the administration argues, so that’s all they’re going to get. The goal seems as much to re-establish the legitimacy of trial by military commission as to ensure that a working justice system exists for al-Qaeda operatives.

What should happen next?

Ideally, the administration would go to Congress and get the system fixed, scrapping the commissions and authorizing courts-martial lite. Alas, that is not going to happen anytime soon. The administration is too bullheaded and unilateralist, Congress too timid.

Failing a serious legislative intervention, there is no alternative to the Guantánamo trials­—especially if we want to start moving detainees out of cold storage. The rules still have problems. But they are not so flawed that a fair trial is impossible or even, in the average case, unlikely. One way or another, the judgments of the commissions will receive judicial scrutiny, thereby deterring gross unfairness.

At this point, it is more critical to establish a stable, predictable means of trying these people than a perfect one. Someday, we’re going to catch Osama bin Laden. It would be nice to have some idea of what comes next.

Benjamin Wittes is an editorial writer at The Washington Post.
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