WASHINGTON — The federal courts and military tribunals that will prosecute terrorism suspects vary sharply in their independence, public stature and use of evidence. But the Obama administration has so far offered no clear-cut rationale for how it chooses which system will try a detainee.
The fuzzy line drawn by the administration has made it easier for critics on both the left and right to assert that no firm legal principle is guiding the choices.
The administration has said similarly situated suspects can be tried in either system, while others may still be held without trial because there is insufficient evidence for either proceeding, but they are considered too dangerous to release.
“I think the Obama administration is trying to straddle this debate between whether we should approach al-Qaeda as a problem of massive-scale criminality or as a problem of war,” said Matthew Waxman, a former Bush administration State Department and Pentagon official now at Columbia University law school.
Indeed, on Capitol Hill on Wednesday, Attorney General Eric Holder testified, “The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.”
The administration is sending professed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged henchmen to a civilian trial in New York, while a suspect in the USS Cole bombing in 2000 and four other suspects will be tried by military commissions.
The major differences between the systems are the federal judiciary’s independence, rooted in the Constitution and lifetime appointments of judges, and the relaxed rules for admitting evidence in military tribunals. Federal courts bar evidence obtained by coercion.
The larger issue, for some civil libertarians, is what the American Civil Liberties Union’s Jonathan Hafetz called a “legitimacy deficit.” The commissions set up under President George W. Bush to try terrorism detainees have been revised several times based on Supreme Court decisions and acts of Congress that moved their rules and procedures closer to federal courts.
“But they just don’t have the credibility and never will have the credibility that federal courts have,” Hafetz said.
The administration appears to have made pragmatic and political choices after determining that it is likely to win convictions in a civilian trial of the alleged Sept. 11 plotters, but seems less sure of its prospects if suspects from other attacks were tried in federal court.
Holder hinted at this balancing act in his Senate Judiciary Committee testimony Wednesday.
“I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum,” he said.
But he also said those who attacked a civilian target on U.S. soil were being sent to a civilian federal court and those who attacked or plotted against military targets abroad were going before tribunals.
Waxman said that it is unlikely al-Qaeda makes that distinction.
“We’re talking about a transnational terrorist network whose criminality extends across borders,” he said. “The scene of the crime is global.”
