Paul Pillar

Ideology Trumps Justice

Congress gave Attorney General Eric Holder no choice. In the interest of avoiding further delay in having some sort of justice served for an incredibly heinous crime committed a decade ago, he perhaps was right to bow to the misguided Congressional will and have 9/11 mastermind Khalid Sheikh Mohammed and several others accused of involvement in that terrorist attack tried in a military tribunal, rather than holding out any longer to try to get Congress to reverse its mistaken ban on trying the suspects where they ought to be tried, in a federal district court. Holder also was right to be openly disdainful of Congress for enacting that ban.

Don't try to find any logic in the ban. It is based not on logic but on a combination of ideology and ideologically inspired wordplay, in which a lot of people in this country feel compelled to inject the word “war” into anything having to do with counterterrorism, with whatever military connotations follow from that. The ideology and the wordplay are wrapped up especially with Republican attempts to portray themselves as tougher on terrorism than their political opponents are, and to try to make this point by repeatedly uttering the word “war “ and suggesting that those who do not use the same vocabulary just don't take the problem as seriously as they do. It is wrapped up as well in the previous administration's portrayal of its Iraq War—a real war—as part of a “war on terror”. In the current case the ideology and wordplay were assisted by NIMBYism in New York City, including the mayor bowing to business and financial interests in lower Manhattan who preferred not to be inconvenienced by a high profile trial in their neighborhood.

The issue here is not to be equated with the question of whether military tribunals can serve a legitimate purpose. The Obama administration's inability to deliver on Mr. Obama's stated intention of closing the detention facility at Guantanamo points to the existence of individuals whose disposition is difficult because a criminal case would be hard to build against them but there is still reason to believe they would be a danger if released. Many such individuals were vacuumed up on battlefields, especially in Afghanistan, and it might be appropriate for some sort of military judicial proceeding to be part of how their cases are disposed. It should be noted that Khalid Sheikh Mohammed was not vacuumed up on a battlefield; his was arrested at a safe house in Pakistan—roused from sleep as documented by that wonderfully unflattering photograph of him in his underwear. The U.S. military had no interaction with him until he was incarcerated at Guantanamo.

Let us review the consequences of the Congressional requirement to address the 9/11 case in a military tribunal rather than in a federal court as provided for in Article III of the U.S. Constitution.

It depicts the terrorists exactly as they wish to be depicted: as warriors rather than as criminals.

It will draw renewed international attention to Guantanamo, to the controversies surrounding the whole detention system centered there, and to the abuses associated with that system.

Given the major legal uncertainties regarding the military tribunals, the case of the 9/11 suspects probably will be subject to unending legal challenges, perhaps never being seen as ever having been definitively resolved.

It shows a lack of confidence in one of the fundamental, long-established elements of the rule of law in this country.

All of the above will be consequences no matter how the military tribunals work in practice. If the tribunals provide all the same procedural rights as a civilian court, then this all becomes a matter of labeling and perceptions. If they do not provide those rights, then we have abandoned one of our own principles having to do with the rule of law, which is that even someone accused of a heinous deed should get his day in court.

To offset all of these consequences, what advantage does use of a military tribunal offer? Besides not inconveniencing those business interests in lower Manhattan, it enables some people to thump their chests as they walk around uttering the word “war”.