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October 29, 2018

Looking for Justice? Avoid Guantanamo

The Pentagon is reportedly considering a new military commission trial at Guantanamo Bay. It would be the U.S. government’s second attempt to try Indonesian detainee Riduan bin Isomuddin, known as Hambali, and two alleged co-conspirators.

The government alleges that Hambali was a leader of Jemaah Islamiyah, an extremist group in Southeast Asia. He is accused of planning the 2002 Bali bombings that killed over 200 people, including seven Americans. He and two Malaysian alleged co-conspirators are also accused of carrying out a 2003 hotel bombing in Jakarta that killed twelve people and injured 150.

Hambali was transferred to Guantanamo in 2006 after being held for approximately three years at secret CIA prisons, known as “Black Sites.” The Senate intelligence committee’s report on the CIA Rendition, Detention, and Interrogation program—the so-called “Torture Report—says a CIA interrogator told Hambali that he would never stand trial because “we can never let the world know what I have done to you.”

The military commission prosecutor first attempted to bring charges against him in 2017. But the Pentagon official known as the Convening Authority, responsible for deciding whether to start a new trial, did not approve the charges, although it is unclear why.

If the charges are approved this time, one issue sure to produce lengthy litigation is whether the military commission even has the authority to try Hambali. Military commissions are set up to adjudicate violations of the laws of war within the context of the relevant armed conflict. Lawyers for the alleged 9/11 co-conspirators have argued that the commission lacks jurisdiction to try them because the offenses occurred outside the context of any relevant armed conflict. Charges related to the Bali and Jakarta bombings rest on even shakier ground, given that the attacks were committed in Indonesia (rather than Afghanistan) by an alleged member of Jemaah Islamiyah (rather than al Qaeda). If the United States was at war in Indonesia in 2002 and 2003, it’s safe to say that most Americans didn’t know about it.

The thorny jurisdictional questions and the lengthy litigation they will produce are only one reason that the military commissions are an undesirable venue to prosecute Hambali and his alleged co-conspirators. The commissions have an abysmal track record of achieving justice, having attained just eight convictions, three of which have been overturned.

Federal civilian courts are much more capable of securing swift justice in terrorism cases. Since 9/11, over six hundred individuals have been convicted of terrorism-related crimes in federal courts, 99 of whom, like Hambali, were captured overseas.