Military commissions for terrorism suspects are a proven failure

On Veterans Day, 2009, I published an op-ed in The Wall Street Journal that said President Barack Obama was making a mistake prosecuting some terrorism suspects in federal courts in the United States and others in military commissions at Guantánamo Bay. I got fired from my federal government job for criticizing the president, and I have spent the past five years in court in a protracted First Amendment battle with the Justice Department that is likely to go on for several more years.

It is five Veterans Days later, and Obama’s mistake continues. It has not gotten better with age.

Fourteen high-value detainees arrived at Guantánamo from Central Intelligence Agency black sites in September 2006. Since then, only one has been convicted and sentenced: Ahmed Ghailani got life without parole for his part in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans. Ghailani, the only Guantánamo detainee ever transferred to the United States, was convicted in November 2010 in federal court in New York City. He is serving his sentence in the Supermax prison in Colorado.

The ongoing proceedings against 9/11 mastermind Khalid Sheikh Mohammed is emblematic of the mistake Obama made when he chose to revive military commissions for some of the other high value detainees. In the years since Ghailani was convicted in federal court, the 9/11 military commission has been mired in such troubles as whether Mohammed may wear a camouflage vest to court, who surreptitiously silenced the audio system in the courtroom, why microphones were hidden in smoke detectors in rooms where attorneys and clients meet, how defense computer files ended up in prosecution hands, whether the Federal Bureau of Investigation was attempting to co-opt a member of the defense, how to eradicate rats and mold in the offices provided to the defense and why the Army extended the chief prosecutor’s tour of duty but refused to do the same for Mohammed’s Army defense lawyer.

Obama’s political opponents, in an effort to portray him as weak, have hoodwinked the public into believing that anything other than military commissions places the country at risk and coddles terrorists. That notion is wrong.

Military commission proponents argue that it is absurd to expect soldiers to stop in the midst of combat to provide rights advisements on the battlefield. This argument is a red herring. You can count on your fingers the number of detainees captured by U.S. troops near a battlefield during anything resembling combat. Take, for example, the high-value detainees: Each one was apprehended by foreign government agents in Pakistan, Thailand, Djibouti or the United Arab Emirates and later handed over to the United States. 

As military commissions have plodded along at a glacial pace, with just seven completed since they were first authorized 13 years ago, federal courts have promptly, safely and successfully handled hundreds of terrorism-related cases. Among them were the high-profile trials of Ghailani, Osama bin Laden’s son-in-law Sulaiman Abu Ghaith, radical Muslim cleric Abu Hamza al-Masri and attempted Times Square bomber Faisal Shahzad. Attorney General Eric Holder was right when he said last November that if Mohammed and the 9/11 case had been tried in federal court, “the defendants would be on death row as we speak.”

Keeping detainees at Guantánamo is hugely expensive — about 35 times the cost of detention in the most expensive federal Supermax prison. Taxpayers have spent $5 billion on Guantánamo since 2002. More than half of the 148 detainees currently held there, at a cost of nearly $3 million a year each, have been cleared for transfer by unanimous vote of the Department of Defense, Department of Justice, CIA and FBI. Moving those who warrant prosecution into the federal system, transferring the others out and closing Guantánamo makes good economic sense.

One of the justifications for military commissions was the purported need to protect sensitive intelligence that might reveal sources and methods and harm national security. Of particular concern was shielding from disclosure how the high value detainees were treated while they got enhanced interrogation at the hands of the CIA. To the best of my knowledge, the worst of the treatment the detainees experienced ended over a decade ago. In the eight-plus years they have been at Guantánamo, the public has gotten a pretty good idea of what the CIA did to them. Obama acknowledged recently that “we tortured some folks,” and soon the government will release part of the Senate Select Committee on Intelligence report on the CIA program. Whatever urgency there may have been to conceal the details of what the high value detainees experienced while in CIA custody has dissipated with the passage of time. Secrecy beyond what is available in federal courts under the Classified Information Procedures Act no longer justifies military commissions.

In a first, the Obama administration recently brought Irek Ilgiz Hamidullin, a Russian fighter captured and held for years in Afghanistan, to the U.S. to stand trial on terrorism charges in federal court in Richmond, Virginia. “The president’s national security team examined this matter and unanimously agreed that prosecution of this detainee in federal court was the best disposition option in this case,” administration spokeswoman Bernadette Meehan said. While military commission proponents such as Sens. Lindsey Graham and Chuck Grassley criticized the decision, their rhetoric was relatively tame. As Graham said, “I would have preferred he be tried before a military commission, but I respect the decision to bring him to trial in an Article III court.”

Federal courts have succeeded where military commissions have faltered. The record of the 13 years since 9/11 is clear on that. The Republicans’ takeover of the Senate and their larger majority in the House means the Obama administration will face even stiffer headwinds on Guantánamo. That is a shame.