Trial by Fire: How Military Commissions Work and Why They Fail

The New Republic, February 14, 2008

At long last, one way or another we’re about to learn a great deal about military commissions. The charges prosecutors filed Monday against Khalid Sheikh Mohammed and five other alleged September 11 conspirators cannot proceed credibly to trial in anything less than a viable court system. The evidentiary questions they pose are too tricky, the charges are too severe, the interrogation tactics are too ugly, and with 3,000 people dead and the government seeking death, the stakes are too high. More than six years after the Bush administration first introduced military commissions, finally we will learn whether they offer a plausible means of trying terrorists or whether the system really is the total flop it has seemed to be so far.

Flop is actually a generous word for the commissions’ performance to date. Bush announced them shortly after the attacks to great consternation from civil libertarians and human rights groups, who feared they would menace liberty. But this system hasn’t even been competent enough to put people on trial. Despite all the sound and fury, it has produced only a single completed proceeding, a guilty plea from an Australian, David Hicks, who was insignificant enough to be sent home a few months later, and was released from prison in December.

The commissions haven’t even managed to get convictions from people who were positively begging for them. At a hearing of his abortive commission trial in 2004, Ali Hamza Ahmed Suleiman Al Bahlul announced: “I testify that the American government is under no pressure. … I am from Al Qaeda.” Ghassan Abdullah Al Sharbi went further. He freely admitted to the very serious allegations against him: conspiracy to murder and attack civilians and to commit terrorist acts. “I’m going to make it short and easy for you guys. I’m going to say what I did without denying anything. I’m proud of what I did and there isn’t any reason of fighting what I did,” he told the court. “I’m willing to pay the price no matter how much you sentence me even if I spend hundreds of years in jail. In fact, it’s going to be an honor–a medal of honor to me.” Both men remain at Guantanamo, and notwithstanding their efforts at self-incrimination, neither has seen a guilty verdict.

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