In deciding to resume military trials for alleged terrorists at Guantanamo Bay, Cuba, President Obama didn't make the right or wrong call; he made the only call.
Had 9/11 occurred on his watch, then he, as his predecessor did, would have had a range of options, including military tribunals (or a Nuremberg-type alternative), civilian criminal prosecution, or indefinite confinement of alleged terrorists as enemy combatants.
But Obama did not have the luxury of a blank slate. George W. Bush did. For Obama, the options were limited by the circumstances he inherited, legally speaking.
Given the duration that prisoners have been held at Guantanamo, it would be virtually impossible to try them in a civilian court. For nearly a decade, their treatment has not been in keeping with the procedural protections afforded in a civilian criminal court. They were not Mirandized. They have obviously had no assurance of a speedy trial. Counsel has not been available to them every step of the way. While incarcerated, some have been subjected to duress. To remove them from that war-type processing and transfer them into a completely different system would be akin to beginning their prosecution in one country under a unique set of rules and procedures, then concluding it in another. It's simply impractical to change after all these years and would jeopardize the prosecution's hand.
Consider the case of Ahmed Ghailani. He is the al-Qaeda terrorist who was acquitted on 284 of 285 counts after being tried in a civilian federal court in New York. The lone conviction was for engaging in a terror conspiracy. That prompted criticism from then-House Minority Leader John A. Boehner (R., Ohio), among others, who said: "The decision by this administration to try terrorists in civilian court was the wrong one from day one." The current House speaker said he favored trying alleged terrorists in military courts.
Ghailani was the first Guantanamo detainee to stand trial in civilian court, and as soon as that decision was made, he was afforded a full complement of constitutional protections. That meant the jury never got to hear some of the most damning evidence against the man charged in connection with the 1998 bombings of the U.S. Embassies in Kenya and Tanzania, which killed 224 people.
Specifically, the government believed that Ghailani had bought the truck and other materials used in the Tanzania attack. The key government witness was a Tanzanian who supposedly sold Ghailani the explosives. But because Ghailani revealed the seller's identity during alleged harsh interrogation sessions, this information was not admissible in the trial.
That's exactly the sort of thing that would happen if more who had been processed in anticipation of a military tribunal were instead afforded constitutional rights in a civilian criminal trial. Had Ghailani been prosecuted in a military court, the judge would have had increased discretion to admit such evidence. But in a civilian trial, the Constitution limits that discretion.
Remember, one premise of our legal system is that the sovereign stays his hand at the time of arrest. In other words, when charges are brought, those protections afforded to a defendant immediately kick in. A defendant cannot be questioned except in certain circumstances. A defendant cannot be kept in harsh conditions. In fact, a defendant cannot be held except in certain circumstances. And a defendant who is incarcerated cannot be subjected to duress.
The civilian system was not designed for al-Qaeda-type defendants. It was designed to protect the individual rights of the person charged by the state, and to keep him from speaking in support of his own prosecution. That is the essence of the Fifth Amendment right against self-incrimination.
But the military has a different objective, and so does its system. The military tribunals are geared toward preventing loss of lives in wartime conditions. And for a military-tribunal prosecution, there is greater latitude for the fact that an enemy wasn't read his rights when apprehended, that evidence might not have been gathered to suit CSI: Miami, and that sources cannot be compromised in the name of a single prosecution.
Which is why the president made the only choice he had, even if it defied a campaign promise.
Contact Michael Smerconish via www.smerconish.com. Read his columns at www.philly.com/smerconish