Article 25

Ask an Unemployed Lawyer

In Uncategorized on 06/13/2012 at 2:14 pm

Retired Col. Morris Davis.

In Military Courts, Justice Itself is on Trial

By U.L.


Dear Unemployed Lawyer:


What’s the big deal about trying terrorism suspects in a military court? Are they that bad?


Blee Dingheart


Dear Blee:


It’s politics.

At its worst, it shows a people that is losing faith in the rule of law and the judicial system – blame the 2000 election, the hatred for President Obama, the fear-mongering of the 24-hour news cycle or the countless TV melodramas that have convinced many people our judicial system is set up to let the guilty go free.

At its best, the special military commissions have proven to be highly ineffective. And yet, with an election looming …

Morris Davis is a retired U.S. Air Force colonel who was the chief prosecutor for the military commission at Guantanamo Bay from 2005-07. Not surprisingly, he was an outspoken proponent of the special military tribunals at one time. This is what he wrote on May 2, 2012:

“Military commission apologists should have the integrity to stand up and tell the public the truth,” Davis wrote on “The truth is the reason the apologists want a second-rate military commission option is because of what we did to the detainees, not because of what the detainees did to us.”

First let’s understand what a jury does in a common law system: A jury is the trier of fact. First codified in the Magna Carta of 1215, with roots stretching centuries before that. Think of it as a group lie-detector test: The jury decides which “facts” are true and relevant.

That’s why you’ll never hear a lawyer say something like, “That’s a fact, and you can’t argue with facts,” unless he’s drunk and making fun of you.

For the purpose of this short column, let’s say that one of the biggest differences between a civilian trial and a military trial has to do with jurisdiction. A chief element of a civilian trial is where the alleged crime occurred (a bit different with terrorist suspects, because they are almost always under the jurisdiction of federal courts). To be tried under the Uniform Code of Military Justice, status of the accused is paramount: That is, it applies to members of the U.S. military.

Again, this is highly abbreviated and simplified, but you should immediately see a problem: Accused terrorists tend not to be members of the U.S. armed forces.

And that’s one of the reasons you need “special” authorization for these tribunals. President George W. Bush first authorized military commissions through executive order Nov. 13, 2001. That original structure was ruled illegal by the Supreme Court in June 2006, and Congress then revived them by passing the Military Commissions Act in September 2006.

Then Sen. Barack Obama, it’s fun to note, voted against that Act, calling the commissions various bad names. When he became President in January 2009, Obama ordered a halt to the military commissions.  After apparently watching too much Fox News, a mere nine months later, Obama and (it must be noted) the Democratic-majority Congress gave birth to the Military Commissions Act of 2009.

What were once vices are now habits, as The Doobie Brothers so eloquently phrased it.

Since 9/11, more than 400 terrorists have been tried and convicted in U.S. federal courts, including the “Shoe Bomber” Richard Reid, who managed to get three consecutive life sentences without parole in a civilian court even though no one was hurt when he tried to light his shoe on fire. (He was originally charged with interfering with a flight crew, which carried a maximum sentence of 20 years.)

And how have the military commissions at Gitmo fared by comparison? Well, according to Davis, 779 men have been detained, and according to the ACLU, about 171 remain, with most (89) already cleared for transfer, or designated to be held indefinitely without trial (46). Bush released about 500 of them, and Obama has released another 67.

And so that leaves the number of military commission trials in over a decade at … six. Two of those six, David Hicks and Salim Hamdan, Davis personally authorized charges against before he resigned his position in 2007, and were deemed the worst of war criminals. Both men have completed their sentences and are back living in their home countries. Hamdan, a confidant and bodyguard of Osama bin Laden, was captured with missiles, and military prosecutors asked for a 30-year sentence. He got five-and-a-half years from the military commission, and since he had been held for over five years, he was almost immediately released.

Attorney General Eric Holder admits that “hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts (federal courts) and are now serving long sentences.” No escapes, no retaliation.

However, current chief prosecutor Brig. Gen. Mark Martins explains that, despite the success of the civilian courts, “There is a narrow but important category of cases in which the pragmatic and principled choice among the lawful tools available to protect our people and serve the interest of justice is a reformed military commission.”

That category of cases includes the alleged 9/11 mastermind Khalid Sheikh Mohammed, who was waterboarded by interrogators 183 times. And if the past is any guide, he may very well see a trial in a year or so and soon be set free – after the presidential election, of course.

One of the key points of our civilian justice system is to establish legitimacy with the populace. Our legal system is something of a confidence game. If the people don’t buy into it, it loses its effectiveness, as President Andrew Jackson ably demonstrated when he told the Supreme Court to go to hell before he waged genocide during the Trail of Tears.

We have been the global leader in running a nation governed by the rule of law, and not by men. Is it that such ideals no longer matter to us, or have our leaders just decided we’re too apathetic to care about such things anymore?

And speaking of core American values … Did you hear the one about eight members of the Bush Administration, including the President, Vice President and Secretary of Defense, being found guilty of torture and other war crimes by a tribunal in Malaysia, which could lead to proceedings before the International Criminal Court in The Hague? Yeah, I didn’t think so. Yay, free press.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to


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