Last week, the Obama administration announced that it would resume new military trials for inmates held at Guantánamo Bay, ending a two-year ban—and marking another reversal of course for President Obama, who has adopted the same policies of President Bush that he once vowed to abolish.
Since he took office, the president has repeatedly waffled on how to handle Guantánamo detainees who may be prosecuted for crimes. On the campaign trail, he often denounced the Bush administration’s military commissions, set up to try Guantánamo defendants. On his second day in office, Obama suspended the commissions, declaring them an “enormous failure.” A few months later, he changed course, reinstating them with just a few cosmetic alterations—but only allowing military trials to proceed for a handful of detainees. He continued to ban the initiation of any new charges in military commissions, until now.
Meanwhile, the administration’s efforts to prosecute detainees in federal court proved to be a fiasco. When he took office, the president, after indefinitely suspending the military commission trial of Khalid Sheik Mohammed—even though pretrial proceedings were well under way and KSM was prepared to plead guilty—announced that he would bring criminal charges against KSM in a Manhattan courthouse. The plan soon had to be abandoned in the face of a massive outcry from New Yorkers about the security risks to the city. The president has not recommenced proceedings for KSM’s military commission trial, and he has given no indication when and where the self-proclaimed mastermind of September 11 will be tried.
Then, this winter, Guantánamo detainee Ahmed Ghailani, an al-Qaida participant in the 1998 embassy bombings in Kenya and Tanzania, was acquitted in federal court of 284 out of 285 counts of murder and other charges, though sentenced to life in prison on one count of conspiracy. Shortly after the disappointing verdict, as part of a defense spending bill, a bipartisan congressional majority enacted legislation that effectively prohibits transfer of Guantánamo detainees to the United States for prosecution.
President Obama may finally understand the wisdom of the Bush administration’s approach, which was based on the view that foreign, unlawful enemy combatants should be treated as wartime enemies in the military justice system, not granted the rights of U.S. criminal defendants in federal court. Congress recognized the need for military commissions nearly five years ago. Acting at the suggestion of the Supreme Court in U.S. v. Hamdan—which advised that the military commissions set up by President Bush needed congressional approval—bipartisan majorities passed the Military Commissions Act of 2006 to establish these tribunals. Then-senator Obama voted against it.
The need for such military tribunals is clear. The procedural and evidentiary rules of criminal actions can be ill-suited to the trial of wartime enemies. For example, the government may be barred from presenting crucial evidence, as happened in the Ghailani case when the judge excluded testimony of a key witness whose identity was discovered through a military interrogation. At the same time, alleged terrorists may be granted expansive discovery privileges, which could include the right to summon witnesses at trial, including soldiers and commanders. Calling such witnesses from the front lines to appear in court could pose a significant distraction from war efforts.
Criminal trials also run the risk of disclosing classified information to our enemies, including sources and methods of intelligence gathering, as well as other sensitive national-security information. For example, in the trial of Sheikh Omar Abdel-Rahman for the 1993 World Trade Center bombings, the prosecution disclosed to the defense lawyer a list of unindicted co-conspirators. We learned later that this valuable list of key terror suspects reached Osama bin Laden, halfway around the world, within ten days.
Military commissions are specifically designed to alleviate some of the risks of criminal prosecutions. First, reliable evidence that could be excluded in a criminal court may be admissible in a military tribunal—for example, information that was obtained either by military interrogation or from a confidential source. Second, the commissions contain provisions to avoid calling witnesses like field and intelligence officers. Third, alleged terrorists are generally prohibited from viewing confidential intelligence. Access is granted only to lawyers with the requisite security clearance, and they are barred from making disclosures.
Two years after President Obama banned military trials, he has now come full circle, vindicating the legal strategy of President Bush. Of course, in the interim, detainee trials have been significantly delayed. But at least Obama has discovered the wisdom of the policies he once maligned.