ACLU’s Ben Wizner: Military Commissions ‘An Enormous Practical Failure’

Editor’s Note: ACLU staff attorney Ben Wizner spoke to The Public Record’s Joshua Durkin and Raymond Storez about the fundamental problems associated with prosecuting alleged terrorists before discredited military commissions enacted by the Bush administration after 9/11. Earlier this week, Attorney General Eric Holder testified before a Congress that a decision is “still weeks away” as to whether the administration would prosecute self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in civilian court or before a military tribunal. Holder and the Obama administration have been pressured by Republican lawmakers, including Sen. Lindsey Graham, to scrap a plan to try Mohammed in civilian court.For background on how Obama reneged on his campaign promise to reject military commissions please see this report.

This is the first installment of a two-part interview with Wizner.

JOSHUA DURKIN: How they were inefficient, how the military commissions do not work in relation to civilian trials.

BEN WIZNER: Well, I think that’s right, I think the first thing that needs to be said about military commissions – whatever you think about whether they are a fair system of justice – is that they’ve been an enormous practical failure – that in all the years since they were rolled out, only three convictions have been obtained – two of them under pretty unusual circumstances.

The first was the guilty plea of David Hicks, which was really worked out as a negotiation between the Australian Prime Minister and Dick Cheney, which resulted in David Hicks serving nine months in an Australian jail.

The second of course was the trial of Salim Hamdan, bin Laden’s driver, for a crime that probably would have gotten him a 20-year prison sentence in federal courts, and the military jury gave him another four and a half months in addition to his time at Guantánamo.

The third, was the conviction of someone named [Ali Hamza] al-Bahlul, he didn’t even show up for his trial. It was a prosecution of an empty chair.

So this is the record of military commissions at Guantánamo during a period of seven years, when hundreds of convictions for terrorism related offenses were secured in US courts with really long sentences. And remember, you don’t have to bomb the World Trade Center to get a long prison sentence in a federal court, people who did nothing more than attend a terrorist training camp are serving 15, 17, 20-year sentences in US courts. So, just from the most practical level, which one of these systems is more likely to achieve swift justice and severe punishment? It’s hard to understand why anyone would choose the military commissions, which have such a terrible record over the federal courts, which, certainly, from the prosecutions perspective, have an extraordinary record.

DURKIN: Could you comment on how the other cases, what prevented them from completion what kept them-

WIZNER: Well, this is also a really important question, and remember that the history of the Guantánamo military commissions is so contested. And really, it’s been one step forward, two steps back. Hamdan is a really good case in point. He was the first person charged before the military commissions.

His military lawyer, Lieutenant Commander Charles Swift, got in touch with civilian lawyers and brought a lawsuit challenging the legality of the military commissions. Which went all the way to the US Supreme Court in 2006, and the US Supreme Court struck down the first version of the military commissions. Congress then reauthorized it with the Military Commissions Act and then Hamdan was tried.

This is important because the same thing is going to happen if we return to military commissions, especially with a trial like the 9/11 case.

This is the most important criminal case, probably in the history of the United States. And the idea that we’re going to bring a case like that into an untested system, where the rules are pretty much being made up as we go along, there are going to be massive legal and constitutional challenges brought to this. I just don’t understand why any government would want to do that.

We’re now eight years removed from the 9/11 attacks. The only person sitting in a US prison charged with involvement in 9/11 is Zacarias Moussaoui, who’s a joke. And had absolutely nothing to do with the attacks. The reason for that is the Bush Administration decided to go around existing legal institutions and create new ones. If we do the same thing again, the next version of the Hamdan case will be in the supreme court in 2012.

There will not be justice. There will not be finality. What there will be instead is a lot of litigation between these defendants and their lawyers and the government over whether this system is fair.

I do understand, I think, why there are so many voices in Washington clamoring for this, but it has nothing to do with what system would be a better system for trying these people in. You know people like Lindsey Graham, and Joe Lieberman and John McCain who are proposing legislation for these cases to be tried in military commissions. They want to see themselves as warriors, for them the idea that you would bring these cases into time-tested civilian courts is some sign of weakness, that we’re not tough enough, that we see this as just a law enforcement issue and not the war that it is.

This is the worst kind of identity politics. They’re trying to distinguish themselves as the ones who are tougher and the ones who are warriors, when in fact the opposite is really true.

The person in the world who most wants to be tried by military commission is Khalid Sheikh Mohammed, and he’s made that very, very clear at Guantánamo. He sees himself as a warrior.

And why would we reward that? Why would we aggrandize someone like Khalid Sheikh Mohammed, as the warrior he claims to be rather than punishing him as the criminal that he probably is?

It makes no sense from a criminal justice point of view. It makes no sense from any point of view except that this is about some desire by people in Washington to see themselves as tougher and to portray other people as weaker.

And that’s really the meta-narrative that’s really driving this debate. Which is an effort on some part, on behalf of some people to portray the president the attorney general as weak because they want to prosecute these mass murderers in a civilian court, because they don’t see this as a global war that will take place everywhere and forever.

And in part that’s kind of why the stakes are high.

Because what are the consequences of treating this conflict with terrorism solely as a war. No one is saying that it’s solely a law enforcement issue. No one is proposing sending New York City Police Officers to Helmand Province [in Afghanistan] to battle the Taliban.

Of course there’s a military aspect to this conflict that’s going on. The idea that we would remove this entirely from the criminal justice system—never involve the FBI, never involve federal prosecutors and federal judges—means that we’re really consigning ourselves to this idea of global war that will take place throughout the world and for all time.

That’s a dangerous notion.

That anyone who we call a terrorist, anywhere in the world, can be held by our military, and not even charged with a crime. Remember every other country has terrorist enemies as well. And what would it do to a world where each country claimed the authority to designate any citizens of any country in the world an enemy combatant, and unlawful enemy combatant, who could be held by the military—either prosecuted by the military, or even not prosecuted by the military. Some of these proposals that Senator Graham is putting forward would not even require the prosecution of these people—they could be held indefinitely, preventively, without charge or trial.

Again this is rooted in a kind of American essentialism. Senator Graham never contemplates for a moment that any other country might legitimately do the same thing. But that is how the fabric of international humanitarian law works. It protects us, and the rules that will be applied to others are the rules that will be applied to us as well.

RAYMOND STOREZ: Aside from the philosophical reasons why they might want to have these trials held in military commissions, they cite them as being too expensive, or too dangerous to hold. Do you think that’s in any way valid?

WIZNER: No, and I think it’s a remarkable argument, and again it’s based on a different meta-narrative which is that people who are accused of terrorist crimes are somehow super-human villains that have powers to kill Americans that exceed ordinary human powers. You’ll remember Rumsfeld or the generals, I don’t remember who it was, that said that these were people who would literally chew through the cables on a C-130 to bring down the plane. These are people who will kill us all the minute they’re released. They can’t even be held safely in a maximum security United States prison. You know, they’ll be released into our communities and go shopping at the Mall of America.

I really don’t understand this; you know, we’re talking about five human beings who are accused of a really heinous crime, but they don’t have the power to wave a magic wand and start killing Americans. It’s an offensive notion to people who run prisons who have held very dangerous and mentally ill mass murderers without harm.

And again, what message does it send that we’re going to abandon our existing fair and legitimate legal institutions because it would be kind of expensive to have a trial, because the security would be kind of inconvenient?

As someone who lives in New York I actually find that personally offensive, that this attack on our city, which was really a brutal attack, I think that we have an interest in seeing the accused perpetrators brought to trial in our community, in an open proceeding. But that this won’t happen because it would be kind of inconvenient. I really don’t understand it, and I do absolutely think it’s contradicted by the record.

The first World Trade Center bombers were brought to trial in Federal Courts in Manhattan. The bombers of the embassies in east Africa were brought to trial in Federal Courts here, and it didn’t cause even a ripple. This is something we absolutely can do, and remember on the flip side, people like Senator Graham want to do this in Guantánamo.

What message does that send? All the times I went down to Guantánamo to watch these military commissions take place, everyone had to go down there. The judge, the prosecutors, the defense lawyers, the human rights observers, members of the public who were invited – I mean, that’s tremendously expensive, time consuming, inconvenient, and it has the effect of shutting out the public.

I want to make one more point about this which is this – after eight years of the Bush administration, it’s not only these individuals who are on trial. It’s the United States Justice System that’s on trial. We really have to show the world that we can provide a fair trial to people accused of these crimes, after what is known about what we’ve done to them. That’s simply not going to happen in a largely secret proceeding in a Guantánamo military commission.

DURKIN: What do you think about Senator Graham’s recent suggestion to hold, to rally support to shut down Guantánamo among the Republican base in exchange for holding the civilian trial in a military commission?

WIZNER: It’s a strange kind of deal when both sides of the deal are a raw deal. Really, I don’t understand it.

We’re going to make one catastrophic decision, which is to remove these prosecutions from an established, legitimate, and fair system, and put them into an ad-hoc, made-up, new system with unfair rules, but we’re also going to close the prison at Guantánamo so that we can move those people to the United States and hold them under the same kind of regime of indefinite detention without a trial.

DURKIN: So you wouldn’t see that as–

WIZNER: What’s the bargain? It’s two bad things. Actually, we (ACLU) oppose moving Guantanomo to Illinois. Guantánamo isn’t a place anymore. Guantánamo is a principle, and the principle is that the United States can pick up people anywhere in the world, not on a battlefield, civilians arrested in airports in Azerbaijan, businessmen arrested in Thailand, civilians picked up in safe houses in Pakistan – that we can designate those people military enemy combatants and we can hold them without charge or trial.

I don’t care if that happens in Cuba or in Illinois. It’s unjust, it’s illegal, it’s unconstitutional, and it’s un-American. To the extent that moving it from Guantánamo to Illinois would remove some of the controversy and the pressure on the situation, I actually think it would be worse. It would legitimize the detention and enshrine it into American law. I think it would be worse.

I mean, in a way, it’s better that this is this marginal and dark legacy of the Bush administration; but if it moves to Thompson, Illinois, that’s the Obama administration. He will be taking Bush’s extra-legal policies and effectively making them legal by transferring it to the United States, but domesticating – literally and figuratively – these awful things and these awful policies. So, no, I think it’s absolutely a raw deal. Leaving aside whether Senator Graham can even deliver on that, I don’t think it makes any sense at all.

DURKIN: You had mentioned something in the teleconference that I thought was interesting. The price tag for the trial, the literal number, the $200 million-

WIZNER: Which was then raised to one billion, right?


WIZNER: The first number we heard out of New York was that the security would cost $200 million, and then a few weeks later, when Mayor Bloomberg decided that he didn’t want the trials here, all of a sudden the police department has a number of a billion dollars.

Again, I think this is based on the notion that in order to bring these five helpless human beings in our custody into New York, we need to cordon off all of downtown because they’re going to kill us all, or someone else will.

I just don’t think we should be cowering in that kind of fear. It’s not as if New York isn’t a target now. The idea that if they’re brought here New York will be a target is a little bit bizarre, because of course people who want to attack New York don’t need an excuse to do so; and they certainly don’t need the presence of  the 9/11 defendants here.

I actually think that, again, what’s at play here on behalf of the people who are most tremendously opposed to bringing these cases to Federal Court is not a fear that it won’t work, but a fear that it will work. They know that if these trials take place in Federal Courts it will be done in an orderly fashion, that all of the thing they’ve been railing about will not actually occur, that it won’t be a security nightmare, that there will not be attacks here, that classified evidence will not be divulged, and that most likely the five individuals will be convicted and sentenced quite harshly. What that will do is undermine this permanent war paradigm, that the only way we can treat these people is by behaving as if we are in an existential war that will take place forever. That’s really what fuels them more than any legitimate fear about holding a trial in a court in New York.

Joshua Durkin and Ray Stores are staff writers for the The Public Record based in Connecticut.

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1 Response for “ACLU’s Ben Wizner: Military Commissions ‘An Enormous Practical Failure’”

  1. PeterD says:

    “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    Some argue that this means that if the alleged “terrorists” were moved to Illinois, this passage from the constitution would apply to their situation. I would hope so, which is why I applaud moving KSM and others to Illinois. My working assumption is that KSM et al are innocent, and their accusers are guilty.

    Our author says “Why would we aggrandize someone like Khalid Sheikh Mohammed, as the warrior he claims to be rather than punishing him as the criminal that he probably is?” I have heard no convincing testimony that this man did anything at all connected with 9-11. Because the government will not show its cards, using national security as a pretext, and because this man was tortured, I would guess that it is absolutely impossible for this man to receive a fair trial in and by the United States. He should be ordered freed, and the government should be investigated for torturing him and trumping up a false case against him, using him and others as fall guys to cover for its own crimes. Of course if this man is really guilty, we would want to know in great and specific detail how he pulled off 9-11, how he managed to so disable this country’s defenses that in a span of two hours or so, no airforce jets were scrambled to protect this country, and why nobody was blamed for the incredible security breach this represents. On the other hand, if the armed forces and people in government were involved in perpetrating 9-11, the promotion of individuals involved in the plot, to keep them quiet, is exactly what one would expect, and promotion of individuals involved in the “failures” is exactly what happened. Of course I’m not drawing any conclusions here, just throwing this out as food for thought.

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