Are military commissions really much different?

Guest post by Michael Foote

Michael Foote is a deputy district attorney in Boulder, Colorado and a principal at the Truman National Security Project. This is his first guest post at The Reaction.

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Many critics of Attorney General Holder's decision to prosecute Khalid Sheikh Mohammed (KSM) and his fellow 9/11 conspirators in federal criminal court seem to believe military commissions would be an efficient and straightforward solution to all the weaknesses present in criminal courts. They promote military commissions as some kind of panacea that would disperse efficient and certain justice to KSM and other terrorists. When one actually understands the two systems, however, it becomes apparent that disparagement of the criminal system and praise for the military commissions both go too far.

In reality, the systems are similar in many ways. Try to figure out which system is described below:

A terrorist defendant is informed in open court of the charges against him, which include murder and conspiracy to commit murder. He is presumed to be innocent. The defendant hires a well known and effective defense attorney who in turn files numerous motions demanding information, suppressing statements, and to dismiss the charges. Some of the demanded information is classified so the judge denies those requests. Some of the defendant’s statements are in fact suppressed while some are admissible. After extensive pre-trial litigation, the trial finally begins. Twelve jurors are seated and they must determine whether the defendant is guilty beyond a reasonable doubt. The defendant is allowed to testify and takes advantage of the opportunity to justify his actions and defend al Qaeda ideology. If the defendant is convicted, he has the right to appeal his conviction in a federal appellate court and even ask the Supreme Court to hear an appeal.

If you guessed this scenario describes a federal criminal court, you are correct. If you guessed it is a military commission, you are also correct. That is because both have many of the same characteristics. In KSM's case, his trial in both would unfold in a very similar way.

How do we know this? Take a look at the military commissions rules of evidence and rules of procedure. Or, for a succinct summary, read a recent report comparing the two systems by the Congressional Research Service.

In both systems, KSM can hire the attorney of his choice. Statements he made about the 9/11 plot before his capture and in court proceedings afterwards would be admissible in both systems. When the death penalty or imprisonment over ten years is sought, all members of a twelve person military commission must agree on the verdict. The government must overcome KSM's presumption of innocence by proving its case beyond a reasonable doubt.

Both systems have protections against the disclosure of classified information. Neither system can force KSM to testify, but both allow him to do so. Both systems require an impartial judge to play the leading role in adjudicating disputes and making evidentiary rulings.

So, when Alabama Senator Jeffrey Sessions says, "different procedures are far more appropriate" in military commissions, it is difficult to know specifically which procedures he is referencing. When he says KSM's case in federal criminal court will result in "massive pre-trial motions," he does not mention the same is true in military commissions. In fact, there is even more room for pre-trial litigation in the military commissions because of the lack of precedent in that system. Defense lawyers in the commissions will attack everything from the constitutionality of the proceedings to the most minute procedural issue.

While former Vice President Dick Cheney laments KSM's ability to "proselytize millions of people out there around the world" during his trial in New York, he fails to explain how a military commission will curtail that opportunity.

When Minnesota Representative Michele Bachmann proclaims "we would have had 100 percent certainty in a military tribunal, but because of the provisions of reasonable doubt, that could turn into something like 80 percent," as she did in a recent protest on the steps of the Supreme Court, she apparently overlooks the fact that reasonable doubt is the standard in both systems.

All this is not to say KSM's trial in criminal court will be a short process immune from intrigue and legal maneuvers. But any court with the required due process provisions will present the same prospects. If the military commission system has the due process its advocates insist, any marginally competent lawyer will be able to fight conviction every step of the way. Trying KSM and other terrorists in either system will be a complex and time-consuming process. Military commissions will hardly shortcut that fact. The use of misleading and incomplete statements about the two systems should be seen for what it is: an attempt to score cheap political points without much regard for the truth.