This is the second and final installment of Joshua Durkin’s and Ray Storez’s interview with ACLU attorney Ben Wizner on discredited military commissions. Part I can be found here.

DURKIN: In the roughly 300 trials, or 319 I believe is the net number of terrorist trials with convictions, do you know of a case where there was classified evidence that was divulged?

WIZNER: It’s a complete canard, the idea that Federal Courts are going to be any worse at protecting classified evidence than military commissions.

First of all, of the three branched of government – the executive branch, congress, and the courts – courts, without question, have the best record of protecting classified evidence. The leaks come out of Congress, the leaks come out of the executive branch. I mean, everyday you open the newspaper and there’s classified evidence that is leaked for strategic, or other reasons, by the executive branch and by congress. You never see that from a court.

The anecdotes that are re-hashed again and again about certain trials in the 90′s are largely urban myths.

Finally, the rules governing classified information under the reformed military commission are basically the same as the rules in federal courts. The Military Commissions Act says that military judges should look to the experience of the federal courts and the rules governing the federal courts to make decisions about classified evidence. It’s not as if the proposed military commissions are going to take place in a completely sealed environment where nothing comes out.

So, I think every part of that debate is based on distortions. First, federal courts have an excellent record under the Classified Information Procedures Act of protecting classified information and making sure it doesn’t get divulged. Second, the military commissions trials are going to be basically operating on the same kinds of rules governing classified evidence and disclosure to the public. I think, again, that it’s just a red herring.

DURKIN: My understanding of the laws and rules in the military commissions is a bit shaky – possibly because they are a bit shaky. I seem to get the impression that there are actually rules and laws in military commissions about how you could admit evidence that was garnered under torture.

WIZNER: I think it’s really a moving target. Under the first iteration of the military commissions, it was pretty clear that they were set up so that information obtained through coercion and abuse could, number one, be used against the defendants. And number two, be kept from the American public – both of those things were critically important – that the evidence that was tainted could be used to convict individuals, but also that it wouldn’t be disclosed. In other words, so that we could prosecute the alleged crimes of the detainees while hiding the crimes that were committed against them by the CIA or the Department of Defense.

The second version of the military commissions contained some slight improvements, but basically had a grandfather clause for evidence obtained through coercion if it were obtained before May of 2005.

The most recent version, the version that came out of Congress and the Obama administration, has certainly stronger prohibitions against evidence that was beaten out of people. But I do think that the standard is still a little bit too loose. I think if you combine it with some of the hearsay rules and some of the secrecy rules you still have a situation where someone can be convicted based on evidence that was roughed out of a third person whose identity the defendant never learned.

If you look at how all those things operate together, there is some legitimate concern that the military commissions will be used for those cases where the government simply doesn’t have evidence that would be admissible in a US court.

And so, you end up having this two-tiered system where cases that they have really strong evidence, or they think they have really strong evidence, will go into a federal court, and cases where they’re a little bit concerned about the providence of their evidence and how weak it might be will go into military commissions.

They haven’t given us any set of coherent principles that would distinguish which cases would go to federal courts and which cases would go to a military commission. It has nothing to do with the kind of crimes that were committed. Every single charge that’s been brought in a military commission could have been brought in a federal court.

The idea that military commissions are for violations of the laws of war and federal courts are for violations of federal laws is completely also a canard. Because, again, all of there terrorism charges could be brought in federal courts, and because even war crimes can be prosecuted in federal courts under the War Crimes Act.

So, what the Obama administration has really set up is this kind of two-tiered system which really undermines, unfortunately, the legitimacy of both the military commissions and the federal courts. It makes the federal courts a place where the administration will only go if prosecutors are pretty sure they can get a conviction.  I think that’s really unfortunate.

I think that what the Obama administration should have done is shut down the commissions all together. And then what they then could have said very legitimately is, why would be bring a case like the 9/11 case – again, one of the most important criminal cases in the history of the United States – into a system that has such a poor record.

And look at what a poor record it has. Look at how inexperienced the people in the system are. There are simply not enough lawyers or judges in the military who have handled complex capital cases. Why would we bring this really critical case into this untested forum? The problem is they can’t make that argument, because they’re kept that forum open, and they would be criticizing a system they’re going to use to prosecute other people in. I really think that they, in that sense, shot themselves in the foot by not doing the principled thing and just shutting down these commissions altogether.

STOREZ: So, just to summarize, you’re saying they were choosing where to hold the cases based on evidence, and not the crime?

WIZNER: I think that this is a decision being made by prosecutors based on the evidence that they have, exactly. In fact, if we’re going to be really honest, it’s not two tiers it’s three, right?

Tier one would be the article three federal courts where all of these cases really belong. Those will be for cases where they are quite convinced they have admissible evidence to convict the defendants.

Tier two will be the military commissions, where they’re a little bit worried about that evidence and they want to have rules and system that are a little more compliant, a little more flexible about what kind of evidence can be used.

Tier three is no trial at all. Tier three is indefinite detention without trial.

DURKIN: You said something interesting earlier, the idea that trying Khalid Sheikh Mohammed and the four co-conspirators in military commissions is feeding into their wishes. I was wondering if you could comment on how that might….why they would prefer to be tried in a military commission.

WIZNER: Well, again, Khalid Sheikh Mohammed thinks that he’s a warrior. He does not think that he’s a criminal. You can look at the transcript of some of his proceedings at Guantánamo, the combatant status review tribunal, where he compares himself to George Washington. Where he essentially says to the officers conducting this tribunal, “Gentlemen, we’re all men of war. We understand that sometimes the death of civilians is a necessary incident to getting our goals accomplished. We understand each other.”

If I were one of those American military officers I would have felt just humiliated and mortified to be put in that position of having to treat this man as a combatant. He sees himself as an enemy combatant, and I’ve seen seen many other people at Guantánamo stand up in court and proudly say, “I am an enemy combatant, I am an enemy of the Unites States.”

You know, the federal judge who sentenced Richard Reed, the “shoe bomber,” he said to him, you’re not an enemy combatant – you’re a terrorist and a criminal. You’re not a warrior – you’re a terrorist and a criminal. And now you’re going to go sit in a prison cell by yourself, and deal with the punishment for trying to kill a bunch of civilians on an airplane.

And that really is how our justice system ought to be treating these people. It should be puncturing their illusions, it should be saying that if you are going to fly a plane packed with civilians into a building packed with civilians, you’re not a warrior, you’re not even an illegal warrior, you are a mass murderer who doesn’t deserve to be treated in any kind of military context – who really just needs to be punished as a bare criminal.

And I really do think that it plays into the narrative of people like Khalid Sheikh Mohammed, to bring them before a military court and to have them brought on trial, to have military defense lawyers, military prosecutors, military jury, and a military judge.

There’s nothing military about Khalid Sheikh Mohammed.

That’s not a justice system, that’s a detention system. The decision is made to detain and we work backwards to whatever set of rules is necessary to obtain that outcome. President Obama was pretty up front about that in May when he gave his big national security speech at the national archive.

He said, if we believe someone is dangerous, we will not release that person. Seems like a reasonable thing to a lot of Americans, but it’s profoundly un-American. We don’t hold people just because we believe they’re dangerous. We hold people because we can prove they committed a crime. If we can’t prove they committed a crime, adherence to the rule of law requires that we release people, even people who we think might wish to do us harm.

If you were to extend this logic that’s being used in the terrorism context to other contexts, why would we hold trials for rapists or murderers? Why would we hold trials at all? If the prosecution really thinks they did it, probably thinks they would do it again, why would we put that evidence to a jury and risk putting a rapist or murderer back on the street again? It’s because our constitution carefully balanced the rights of individuals against the power of the state, and if we’re going to scrap that in a terrorism context it seems to me that it’s a slippery slope to where the government decides who is dangerous and then creates whatever rules are necessary to give an illegal imprimatur to detain people.

Now in practice, of course, it’s just going to be Muslims captured abroad. That’s another thing we ought to worry about – that we have one justice system for most people in the world, and another entirely different justice system for Muslims captured abroad.

DURKIN: Correct me if I’m wrong. If you’re a foreign national and you’re arrested in the United States, you still come under United States federal courts.

WIZNER: Absolutely. When we’re talking about criminal law and criminal punishment, the constitution requires that people who are prosecuted have essentially the same rights as citizens. Obviously being a citizen confers other privileges that non-citizen don’t have. If you’re going to actually deprive somebody of liberty based on having committed a criminal offense, the rules really ought to be the same for citizens and non-citizens alike.

DURKIN: Some would say that acknowledging him as an enemy combatant, in a way, nullifies some or a lot of his punishment-

WIZNER: Well I think that’s right. Khalid Sheikh Mohammed wants to be executed he’s made that pretty clear at Guantánamo in the proceedings there, that he wants to be a martyr. The way in which that occurs is very important to him. He would like his stage to be a military trial where he is executed as an enemy of the United States who fought a war against the United States.

And again, there’s a way in which this whole war paradigm plays exactly into the hands of al Qaida, because they’re the ones who see it as a war. They declared war on the United States in the early 1990s. This band of criminals and terrorists declared war on the United States.

And it’s sad to see a great and powerful nation go on to that rhetorical battlefield.

STOREZ: Do you think it might be, in some ways, cultural misunderstanding? American bureaucracy just can’t understand that they are buying into their needs or their wishes?

WIZNER: I think that there’s something else going on, which is that the war paradigm is suiting the needs of some people in American politics as well. You know, it allows a Lindsey Graham, or a Rudy Guiliani, or a Dick Cheney, to say, “We’re fighting the war of our generation, and people who don’t see this as a war are weak. And they’re the ones who got us into this kind of situation where people would attack us. And what we really need to show the world is that we’re tough, we’re mean, we’re even willing to torture.”

So, I don’t know that it’s so much a misunderstanding, as that there’s a sick way in which the political needs of some terrorists and the political needs of some people in Washington feed each other. And they both get what they want out of this kind of war dynamic.

The problem is it’s enormously weakened the United States in the eyes of the world.

And we’re in a situation where our closest allies have lost faith in our justice system, are going to be less and less willing to extradite people captured in those countries to the United States for trial if they’re going to be brought into places like the Guantánamo military commissions. [They] are appalled that we won’t provide a remedy for torture victims in our civil courts.

And I think ultimately, our security is going to be harmed much more by that lack of cooperation with our allies, then by anything else.

STOREZ: It seems at this point that a Manhattan trial might not be feasible.

WIZNER: Well, I think that the Manhattan trial’s not going to happen.

When you have the best civil libertarians in all of Congress, people like Jerry Nadler, coming out against having a trial in Manhattan because of his constituents, then it’s not going to happen, and I think that we need to understand that.

That doesn’t mean, remotely, that it shouldn’t happen in a Federal court. If you look out my window there to the right you’ll see Governor’s Island, which is still less than a mile from Ground Zero. It’s a place where, very easily, a facility could be put together to hold this trial. And it would have some real resonance for New Yorkers because it’s really in the shadow of where the World Trade Center was. That’s one possibility.

It could be held really anywhere in New York, in Virginia, in Pennsylvania in the places where these attacks took place. And if you can build a prison in Guantánamo, can build a court house in Guantánamo, I don’t see why you couldn’t build a court house simply for holding this trial.

It could be done, it has been done, and it should be done.

The important thing, again, is that the trial take place in the system that is most capable of providing a fair trial and a just outcome, and one that will be deemed legitimate by the rest of the world.

Now my preference, and the ACLU’s preference, of course, is that that trial take place in Manhattan where the worst part of the crime took place, and where the public would have the most access to the proceedings. But the more important principle is that it be conducted fairly, and that really could take place anywhere.

Joshua Durkin and Ray Storez are staff reporters for The Public Record based in Connecticut.