The Obama Administration's decision to reboot the military commissions has already sparked debate over at least two questions: First, whether the President has thereby flipped positions from the campaign; and second--and more substantively--whether trials before ordinary civilian courts would not be adequate. Here, I want to raise a third question: whether the analysis that led the Administration to this decision was sufficiently inclusive of indirect harms resulting from the terrible public relations imagery of restarting the military commissions.
I can begin by acknowledging that there could be something to the "mend-it-don't-end-it" justification for using military commissions. The problem with the military commissions authorized by President Bush, President Obama says, was their lack of key procedural safeguards: limited ability of the accused to choose his lawyer; extensive use of hearsay evidence and the concomitant inability to confront witnesses; and the possibility of using evidence obtained via the equivalent of torture. By fixing these aspects of the military commissions, the President says, we can have the advantages of military commissions without their flaws.
But what exactly are those advantages? To the extent that one worries about the leakage of information that could damage national security, civilian courts have procedures for protecting sources and methods. If the Obama military commissions would go further than federal courts would allow by, for example, limiting the defendant's access to information about the evidence against him, then the Administration cannot be said to have "mended" the Bush military commissions.
A Washington Post story suggests that the real barrier to prosecution in federal court was the fact that the prospective defendants were interrogated at Gitmo without first being given Miranda warnings. Yet that is at most a small point. It would keep out incriminating statements given by the defendants themselves in response to such interrogation but would not even keep out other evidence obtained as a consequence of those statements (provided the statements were voluntary). (See U.S. v. Patane (2004)). Moreover, it is not even fully settled that Miranda applies under these circumstances. In the East African embassy bombing case, the U.S. Court of Appeals for the Second Circuit last year held that unlike the Fourth Amendment, the Fifth Amendment does apply to overseas law enforcement activities by U.S. personnel, but it would be open to the government to argue that this ruling was mistaken, although the government would then still face an uphill battle in arguing that notwithstanding Boumediene v. Bush, Gitmo counts as overseas.
So let's concede the Miranda point: It would be somewhat harder to obtain convictions in federal court than in military commissions, and for reasons having to do with the "technicalities" of civilian justice rather than the core merits. The President is then right that there are some legitimate advantages to trials before cleaned-up military commissions. But we must also consider the substantial disadvantage: Any use of military commissions is now so tainted in the eyes of the world public that the increase in likelihood of conviction is arguably swamped by the increased hostility to the U.S. We continue to be engaged in a global struggle for hearts and minds: The Administration's use of military commissions will be seen, and is already being seen--fairly or not--as evidence that in the U.S., plus ça change, plus c'est la même chose. The resultant lessening of international cooperation and recruiting advantages to our enemies could be larger by an order of magnitude than the risks that come from a greater likelihood of acquittal in a civilian court.
The Administration appears to understand this logic in another context: The Administration's decision to close the Gitmo prison, even as it plans to move some prisoners to the U.S. and continues to assert that there is no right to habeas for prisoners held at Bagram, rests on a p.r. rather than a real substantive difference with the Bush Administration. Gitmo has become so associated with the Bush policies that it needs to be replaced, even if by prisons that afford no greater rights. The mystery is why the Obama Administration does not understand that military commissions are similarly tainted.
Now, as against all of this, it could be said that it's very hard to quantify the risk of harm that will come about from the public relations hit the U.S. suffers by revamping military commissions. That's true, but it's also hard to quantify the risk of harm from increased odds of acquittal. And the comparison does not favor military commissions. For one thing, it's not even obvious that the U.S. has to put anybody on trial before a military commission or a civilian court. One alternative to military commissions is simply continued detention, not as punishment, but as prevention based on determinations of the combatant status of the detainees. I'm not very fond of this option because of the limitations of the combatant status review tribunal system, but post-Boumediene, habeas in civilian courts is available to police these procedures. Something like POW status would avoid the PR problem of military commissions without risking release following acquittal.
Alternatively, if one thinks that at a certain point the prior combatant status determination loses ongoing salience (as one might well think given that the enemy is not a nation-state but a state of mind of particular individuals and non-state groups), then we might ask what the harm would be from releasing some small number of detainees following acquittals by civilian courts. Given that federal courts are unlikely to be super-sympathetic to accused al Qaeda members, it's hard to imagine many acquittals of actual guilty al Qaeda members, but even if we grant that there could be a handful, how do we quantify the harm?
Let's suppose that as many as five guilty detainees could be acquitted by federal courts but convicted before military commissions. We then have to discount the harm by the likelihood that we would send these former detainees to a country where they would be released. And even if they go on to once again join the ranks of foreign terrorist organizations, that is a drop in the bucket--unless our hypothetical acquittee is extraordinary: the sort of charismatic or organizational leader like bin Laden who could mobilize thousands or a military genius who could obtain or create WMDs. And people of that sort are especially unlikely to be incorrectly acquitted. As for the others, the risk posed by the possible addition to the ranks of terrorists of a handful of ordinary former detainees would seem to be vastly outweighed by the risk of greater hostility from a pool of millions of potential recruits around the world.
At the very least, one would like to see some explanation for why the Administration calculates the costs and benefits differently.
Posted by Mike Dorf