Tuesday, April 5, 2011

NIMJ Interns Report on the Congressional Hearing

NIMJ student interns attended the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security hearing on the 9/11 trial.  What follows is their report:

In his opening remarks, Chairman Sensenbrenner reiterated President Obama's recent announcement that KSM and the other alleged 9/11 conspirators will be tried in military commissions at GTMO rather than in a federal civilian court. He also expressed his relief that the administration came “back to the path of reason and common sense.” He said that the acts they are accused of were not merely domestic crimes, but “acts of unmitigated war,” adding that “we are all victims” of 9/11.

In response, Ranking Member Scott clarified that Congress left the President no practical option but to use military commissions. Federal courts, he said, are “time tested” and able to “withstand challenges,” whereas the “survivability of convictions [resulting from military commissions at GTMO] are in question.” Using federal courts, he said, “protects the constitution and citizens.”

Various other members of the Committee made statements before the witnesses testified. Congressman Smith noted that KSM is a “war criminal, not a common criminal,” and expressed concern that it is hard to obtain a conviction in federal courts, citing the fact that Ghaliani was acquitted of 284/285 charges. Congressman Conyers was disturbed that members of a judiciary committee would be so dismissive of the “presumption of innocence.” He asked that several statements in support of the use of federal courts be admitted into the record. These statements were written by people such as Justice Kennedy, Colin Powell, former FBI Director Bill Sessions, and Brigadier General James Cullen. It was later noted that although Ghaliani was acquitted of most of his charges, he still received a life sentence without the possibility of parole.

The first witness to testify was Mr. Beamer, the father of Todd Beamer – the passenger aboard Flight 93 who said, “Let's Roll” before the passengers overtook the plane. He expressed his “bitter disappointment” that the 9/11 perpetrators had not yet been brought to justice; and he was unsatisfied with the Obama Administration’s progress in doing so.

Charles "Cully" Stimson testified that Obama’s announcement indicates a bipartisan consensus about military commissions has emerged. Clearly supportive of military commissions, he said that the constitution and procedural rights that accompany a federal trial cannot appropriately be applied to enemy combatants. Miranda rights and the right to call an attorney, he said, would be impossible to apply to the ‘battlefield.’ Military intelligence, acquired for the purposes of national defense rather than criminal prosecution, would be inappropriately excluded from trials. The application of speedy trial rights provided by the 6th Amendment would risk dismissal since “lack of political courage [to bring these cases to trial] is not a legally cognizable excuse” for how long it has taken to reach federal courts. The application of rights in the Geneva Conventions would “reward” enemy combatants for not following the laws of war, when they are meant to be an incentive to follow them.

Stephanie Hessler also showed enthusiastic support for military commissions. She said that the “founders understood the difference between keeping internal order and punishing [enemy combatants]” and she noted that military commissions have been used throughout US history. She said that trying alleged terrorists after an attack in federal court does little to prevent future attacks from happening, implying that the use of military commissions supports a policy of “prevention” rather than just “punishment.” She had several concerns with federal trials. Federal trials would result in the disclosure of top secret, classified information since federal judges can order certain information released. The prosecution then has to comply or risk the dismissal of the case. According to the MCA, however, classified information can be redacted and thus not be publicly disclosed. The application of the 6th Amendment right to a public trial will allow for the dissemination of non-classified information that may be dangerous if obtained by other terrorists. Under the MCA, however, the judge can close proceedings. The application of Miranda would impede intelligence gathering in the future because alleged terrorists would take advantage of the “right to remain silent.” Under the MCA, however, detainee statements are admissible.

Professor Stephen Saltzburg began by confirming that it is, in fact, easier to convict alleged terrorists at military commissions. He warned, however, that the federal courts have the last word on appeal as to whether the commission procedures are fair and we do not know whether or not they can withstand scrutiny. There is an immense risk the flaws in the system will call the convictions into question. Among these flaws, he mentioned the fact that we do not know whether material support for terrorism and conspiracy are war crimes. Saltzburg mentioned his experience working as Deputy AG when the Pam Am 103 incident occurred. He noted that although these acts took place in 1988, the conviction that resulted is still not final. Like the military commissions, the system under which this conviction was handed down was a new system; and we should keep in mind that we do not know how long the appellate procedure could go on, or what other unintended problems could arise. The system, in other words, is not tried and tested. The federal system, which has functioned well and has successfully handled over 400 terrorist trials, is reliable and predictable. During questioning, Saltzburg noted that the “greatest victory of KSM is to be treated as a warrior” in a military commission rather than being treated as a “common criminal” in a federal court; and he warned that the mistakes that result in the release of classified information can just as well be made in military commissions.

Before the hearing concluded, the Chairman asked Saltzburg about his opinion on the Nuremberg and Tokyo trials that followed WWII, noting that they were also military commissions. Saltzburg responded that WWII was a traditional war against nations wherein the prisoners were seized on the battlefield and prosecuted promptly and where evidence was widely available. The allies, he said, joined together in agreement that this was the best way to do justice.