Tuesday, July 26, 2011

Casey Anthony and Military Prosecutions

While the rest of the focus in DC is on the debt crisis, here is my reaction to other recent "big" news--the Casey Anthony verdict:

During the past couple of weeks of over-hyped coverage of the Casey Anthony murder acquittal and her subsequent release from jail, politicians with whom I usually agree have used outrage at the verdict as justification for expanding the use of military trials for suspected terrorists. Recent legislation even seeks to strip citizenship before trial so the defendant is eligible for a military commission.

It is apparent that most favoring such proposals have no knowledge of the traditional military justice system, much less the military commissions. Having attended two military commissions at Guantanamo Bay and spent years prosecuting and defending military cases, please indulge my filling in the gaps.

In their current form, military commissions are untested, seldom-used tribunals of limited jurisdiction, but politicians tout them as if they were the gold standard for prosecuting cases. First, they forget all accuseds in military commissions have uniformed attorneys represent them at government expense, while civilian defendants must show an inability to afford counsel in order to have the government pay their attorney’s fees. Second, the law governing the commissions allows the prosecution of only a handful of crimes, and the most often-charged offenses at these trials may not survive appellate review. Civilian charging options are far broader and have withstood the test of time, thereby preventing victims and their family members from having to relive the horrors of 9/11 and other crimes in yet another trial, should the appeals courts continue to strike down aspects of the commissions system.

One additional point missing from this debate is the matter of sentencing. In civilian court, we often see terrorists sentenced to life in prison without the possibility of parole. The federal judicial system has mandatory minimum sentences, while “no punishment” is the minimum sentence available for nearly all military offenses, including those tried in military commissions. In the six (yes, only six completed trials in nine years) military commissions held to date, the court members have sentenced only one person to life in confinement. One-third of those sentenced were freed years ago, and one more, Omar Khadr, is set for release to Canada this fall.

The Anthony case does highlight a key part of all trials in America—court verdicts are not pre-determined. At the close of the evidence, one can never predict with certainty whether the case will end with a guilty verdict. This is true for military cases also. The jury or panel, as a military jury is called, is always the X factor in a trial. In fact, in the first military commission tried at Guantanamo Bay, the panel acquitted Usama bin Laden’s driver/bodyguard of the most serious charges against him and sent him home to Yemen mere months later.

Nobody in the post-9/11 world wants the responsibility for failing to stop another attack, and that has prompted our fear of the unpredictability that characterizes a free nation’s court systems. There is a means of ensuring convictions for every suspected terrorist. We could just forego trials entirely and confine for life anyone accused of such crimes, or we could go through the charade of a trial whose verdict we know will be guilty because we require such outcomes. Of course, that would place us in league with nations like Iran, which continues to hold two American hikers without trial.

Is that the America the Founders created and today’s military members defend? I hope not.