Military Commissions Are a Terrorist’s Best Bet

By Daphne Eviatar, Senior Associate, Law and Security

Cross-posted on Huffington Post.

On February 2nd, a federal court of appeals decided that an Algerian man convicted of planning to bomb the Los Angeles International Airport on the eve of the millennium deserved a far harsher sentence than he’d received.

Ahmed Ressam, who pleaded guilty to nine counts of criminal activity and then proceeded to provide information about other terrorists to the government, had been sentenced to 22 years in prison plus five years of supervision in exchange for his cooperation. The intelligence he provided led to two terrorist convictions, the identification of Zacarias Moussaoui and key information on disabling Richard Reid’s shoe-bomb.

After two years, though, Ressam stopped cooperating and recanted some of his earlier statements. Although the terrorist convictions were upheld (one prisoner’s habeas petition is pending), other cases under investigation had to be dropped, and disappointed prosecutors asked the judge to sentence Ressam to a minimum of 35 years.

The Ninth Circuit Court of Appeals, in a largely-overlooked ruling last week, agreed with the government that Ressam had gotten off too easy. The court sent the case to a different judge for resentencing in light of the federal sentencing guidelines – which provide for 65 years to life.

On the one hand, the Ressam case offers a perfect illustration of how prosecutors use the criminal justice system to obtain critical intelligence from terror suspects that saves lives and leads to more prosecutions. All this without sacrificing long prison terms.

On the other hand, and as Human Rights First has been pointing out for years now, the federal courts are no bed of roses for terrorists. They have convicted many more terrorists than military commissions have. And following the only contested military commission trial since the start of the “war on terror,” Osama bin Laden’s driver, who the government claimed was a key player in the global jihadist’s murderous efforts, was sentenced to only five and a half years in prison – just six months more than the time he’d already served.

Back then, the National Review’s Andy McCarthy, the former prosecutor who now argues for military interrogation, trial and detention for all terrorism suspects, wrote a piece titled: “Disgraceful Hamdan Sentence Calls Military Commissions Into Question.”

That was 2008.

Just last week, McCarthy wrote that “Like most Americans, I think it is a terrible idea to give alien enemy combatants civilian trials.” Our usual procedures for handling criminal terrorism cases no longer need to be followed, because now we are at war, he says, so anything goes. Although the same critics making this argument today never pressed that position during the Bush administration, it’s now become accepted wisdom among those eager both to discredit the Obama administration and to appear tough on terror that terrorism suspects belong nowhere near the civilian justice system.

It’s an odd position for these critics to take, given the track record of the military commissions. Military commissions have convicted only three terrorists since they were created. Two of them have already been released from prison. The other didn’t even present a defense at his trial.

What’s more, in a military commission, conviction on charges like “conspiracy” and “material support for terrorism,” the most common charges against suspects who haven’t personally launched an attack, could be reversed on appeal, since those haven’t traditionally been considered war crimes. Or, as in the Hamdan case, they might just draw a far lighter sentence. Even the administration’s own lawyers have expressed doubts about the validity of such charges in military commissions. In federal court, such charges are routine – and frequently the way prosecutors win convictions.

Then there’s the problem that certain killings in war may not constitute war crimes and so could be dismissed or appealed in a military commission. Some international law experts argue that Omar Khadr, for example, the child soldier who’s been charged with murder for throwing a grenade at U.S. soldiers in Afghanistan and whose case is now slated for trial by military commission, may not have committed a war crime even if he did throw the grenade, which resulted in one soldier’s death. That’s because attacking an enemy soldier, even by a civilian, is not traditionally considered a violation of the laws of war.

There’s another reason military commission sentences would probably be lighter than civilian ones: unlike in federal court, the military commissions have no sentencing guidelines. And as McCarthy lamented after the Hamdan trial, it’s the jury of soldiers who weigh the evidence rather than the judge that metes out the sentence in a military trial. They can choose whatever sentence they see fit – including no punishment at all. In civilian court, after the jury determines whether the defendant is guilty, the judge imposes a sentence based largely on strict guidelines governing each and every charge.

Some defense lawyers, therefore, may secretly hope that their clients are tried by military commission. Human rights and civil liberties advocates generally don’t, though, because we believe the military commissions themselves are illegal. International law requires that “unlawful enemy belligerents” be tried in a regularly constituted court – that is, a civilian federal court or the existing military court martial system. That’s part of why we also believe that creating special courts to try terrorism suspects will undermine U.S. credibility and ultimately, threaten U.S. national security.

If the goal were to win a narrower conviction or a lighter sentence for terrorists, though, then it would make sense to favor military commissions. But that probably isn’t what Andy McCarthy or Senators Lindsey Graham and Susan Collins, who’ve introduced legislation to prevent any future civilian trials of terror suspects, are after. But if they win their latest crusade on that point, then an easier ride for convicted terrorists may be exactly what we’ll all get.