Gitmo Trials: Time To Do 'Em Right

Having established many years ago my bona fides as a critic of the Bush Administration's ham-handed approach to the use of military tribunals against alleged terrorists, I have earned the right to declare now that the American Civil Liberties Union and its allies are wrong, dead wrong, to so quickly and ferociously denounce the Obama Administration's new military commission rules or the government's recommitment to using tribunals for terror suspects.

As someone who for years covered the curious case of al Qaeda wing-nut Zacarias Moussaoui, I also have earned the clarity to declare that there are, indeed, a group of prisoners at Guantanamo Bay, Cuba who neither morally deserve, nor are lawfully entitled to, the same sets of due process protections that you and I would receive if the government accused you or me of conspiring to commit mass murder. I don't want to see Khalid Sheik Mohammed spew his garbage in open court in Alexandria, Va. Been there, done that.

(AP Photo/Janet Hamlin)
The administration's suggested changes will not make terror trials perfectly fair to the detainees. No rules of law anywhere for anyone achieve that goal, including the Federal Rules of Criminal Procedure which influence process in our civilian criminal courts. Even the richest, most popular, most innocent defendant of all time would regularly have cause to complain about the many injustices — some petty, some large, some expressed in bad law or simply implied in policy — that surround each and every trial when life or liberty are at stake. That's just the way it is.

But from what little we now know about the details of the new policies — tougher hearsay rules, banning the use of evidence obtained through torture, allowing the defendants more leeway in using defense attorneys — the standards offered by the Obama Administration are significantly fairer to terror suspects than were the restrictive rules stubbornly implemented by the last regime. The old rules, you will remember, were routinely blocked by the federals courts, challenged by the Pentagon's own lawyers, and generally derided around the world as enabling sham trials from a nation that purports to savor the rule of law.

Because the new tribunal rules begin to address the worst flaws and imbalances in the old procedures, because they would help the terror defendants, the federal courts are more likely to endorse them when terror detainees finally start getting convicted down at Guantanamo Bay, Cuba. The judges on those courts — and not liberal advocacy groups — are the only judges who matter, and by giving the detainees more due process rights, the Obama Administration is provocatively giving federal jurists less reason to block the product of the commissions' work.

And isn't that the whole point of all of this yammering about how to do something about these terror suspects?

No one wants all of them sent to civilian courts — if flame-out Moussaoui could run circles around prosecutors, imagine what lynch pin Mohammed could do. No one (save for a small town in Montana) wants them in maximum security prisons here on the mainland. Indeed, our prisons are so overcrowded that judges are ordering them emptied of certain felons. And no one seriously wants to let them continue to fester at Gitmo living un-adjudicated lives of limbo. What's left? Military trials — done right this time.

The flaw in the Bush Administration's approach to the use of tribunals for terrorists was never in the principle — when done right, military trials are efficient, safe, and historically popular — but in the execution of them. Bush officials set themselves up for miserable, inexcusable failure (seven years, no tribunal convictions upheld on appeal) by being arrogant and greedy, and by unreasonably and blatantly skewing the system against the men year after year.

With the consent of Congress, the same legal lights who gave us the torture memos gave the detainees mock rights or no rights at all. The feds did this because they thought they could get away with it legally (they could not, of course), and because in some cases they realized that the evidence they had obtained against some of the detainees was not as strong as they would have liked. And every time they lost in court, they refused the suggestions of well-meaning people who were offering directions for how the tribunals could be saved instead of scrapped.

Ways not unlike the new policies adopted now by the Obama team. The new policies begin to take a different approach. They suggest a reassuring level of confidence in the evidence against the defendants and a refreshing level of trust in the military officials who will preside over the trials. They say to the detainees (and, more importantly, to the larger audience around the world) that America can and will convict most of these terror suspects even after they are given substantial rights assuring them of reasonably fair trials.

The detainees who would be prosecuted under the new commission rules are not U.S. citizens or residents. They were not apprehended or captured on American soil. They are not charged with civilian crimes. They straddle a fine legal line between alleged criminal, enemy combatant, terrorist and just plain schmoe. No federal court has ever declared that these men are entitled to the full panoply of due process rights to which the rest of us are entitled — and no federal court ever will.

What more do the ACLU and other critics of the new plan want from the executive branch as it tries to process these men? Do they forget America's relatively successful history of using tribunals to adjudicate the rights of those we do not wish to bring into our regular court system? Did the stultifying experience of the Bush Administration's approach to the detainees make civil libertarians so cynical about tribunals that they cannot grasp the idea that they can work?

Regular civilian trials are perfectly appropriate for many of the detainees — the federal courts are manifestly capable of handling sensitive terror-related cases involving classified evidence. But there are some terror suspects — like Mohammed and Ramzi Binalshibh — whose fates would be better (and fairly) adjudicated by tribunal.

The new procedures give a little to potentially get a lot. That's a formula the Bush Administration failed or refused to comprehend. And it's a formula the ACLU should embrace and not assault.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.