The military commission system of trying terrorism suspects may in fact be more beneficial to the accused than being tried in federal district courts, a Houston law professor and former military intelligence officer who has been both a prosecutor and defense attorney said Saturday.
Geoffrey S. Corn, an associate professor at the South Texas College of Law, was one of three panelists on “Terrorism and the Law,” part of a seminar for lawyers, journalists and communications professionals and students.
Corn and two other panelists — Michael A. Battle, a former federal prosecutor in the Western District of New York, and Jack B. Zimmermann, a famed criminal defense attorney in Houston — based their discussion on a hypothetical scenario involving an attempted bombing in Houston.
In the scenario, Houston police receive a tip that a bombing is about to take place at Ellington Airport. Officers stop a car outside the military airfield’s gates and, without consent, open the trunk to find a bomb inside.
The occupants of the car — a U.S. Air Force enlisted man; his cousin, a Yemeni national; and a female American citizen — are arrested. The woman confesses to a plot to kill the maximum number of people possible. The two men, who are both advised of their Miranda rights, do not confess. Later, authorities seize a computer containing evidence that the group has had substantial contact with a radical Yemeni cleric.
Zimmermann, a former trial judge in the U.S. Marines who is now representing an Army officer appealing his conviction for murdering a suspected Iraqi terrorist, asked his fellow panelists which in forum they would prefer to try the defendant — a federal district court, a military court-martial, or a military commission (also known as a military tribunal) at the U.S. detention camp in Guantanamo Bay, Cuba.
Battle, the former federal prosecutor, who participated in the case against the so-called Lakawanna Six “sleeper cell” outside Buffalo, N.Y., said, “We’d welcome all three in federal court.”
Corn called the Lakawanna Six case a “decisive point” in U.S. jurisprudence on terrorism cases. “”If we catch you inside the United States, you’ll be in federal court. If we catch you outside the country, you’ll be in a military commission in Guantanamo,” he said.
But Corn said that the question of jurisdiction is “a problem of uncertainty” that has arisen since the Sept. 11, 2001 terrorist attacks. All three defendants would be subject to federal prosecution, he said, but in the case of the U.S. airman and the Yemeni national, the issue becomes thornier.
All three agreed that the current military commission system is far superior to the one that existed before 2006, when the U.S. Supreme Court struck down the system first created by the Bush Administration. Congress responded that year by passing the Military Commissions Act, which included many of the safeguards for U.S. military personnel in the Uniform Code of Military Justice.
Zimmermann said that the UCMJ was set up by Congress in the wake of World War II, when Congress members, many of whom were themselves veterans, began receiving complaints from service members about the unfairness of the previous military justice system.
Corn agreed that the court-martial system, which he called “the Gold Standard,” affords service members protections that civilian defendants don’t have. “It’s a bit of a myth that the court-martial system is unfair,” he said.
“The reality is that nobody has to go to Guantanamo,” Corn said, since that decision is a presidential prerogative. He said pressure by members of Congress on President Obama and his administration to not try terrorism suspects in federal court is “an intrusion on his Constitutional authority. You can’t tell him where to try somebody.”
Corn said that even though the 2006 Military Commissions Act removed many of the “procedural defects” from when the Bush Administration first created them, the commission rules still have huge obstacles for terrorism defendants, which he said poses a major concern.
“Is it legitimate to have a set of rules that makes it easier to convict someone?” he asked rhetorically.
Zimmerman, the defense attorney, said he strongly oppose having one of his clients being tried at Guantanamo. “I wouldn’t go to a military commission unless there was a gun to my head,” he said. “They’re not fair.”
He particularly noted that there is no right of appeal after a conviction “unless you get into habeas.” He also said that the restrictions placed on a lawyer’s ability to meet with his client and other obstacles make the military commission system too onerous.
But Corn disagreed, saying that terrorism defendants might have a better chance with military commission judges than they would with civilian jurors who might be swayed more easily by emotional appeals.
“Military commissions know the difference between a real war criminal and a fake one,” he said, referring to the case of Salim Hamdam, the personal driver of Osama bin Laden, who was tried at Guantanamo and received a split verdict.
All three panelists agreed that while the 2006 law substantially improved the military commission system, it was difficult to change the early perception, especially outside the United States, that they were fundamentally unfair.
Maher Arar and ‘Extraordinary Rendition’
Earlier in the seminar, Maher Arar, a Syrian-born Canadian citizen, spoke via Skype about his extraordinary rendition by U.S. authorities in 2002 to Syria, where he underwent imprisonment and torture for nearly a year before being released back to Canada.
Arar described in painstaking detail how he was detained at JFK Airport in New York while flying to Boston from a family vacation in Tunisia. He said he was put on the U.S. terrorist “watch list” in the aftermath of the 9/11 attacks based on mistaken information from the Royal Canadian Mounted Police, that country’s version of the FBI.
He said he was denied access to a lawyer or to phone his family (except once, to his mother-in-law). He said the told authorities he wanted to be sent to Canada rather than Syria, which his family had fled when he was 17 so that he could avoid military service, out of fear that he would be tortured.
“I realized that the very reason I was going to be sent to Syria was for exactly that reason,” he said.
After being held for two weeks in the United States, he said, he was flown by a private jet to Jordan, then driven to Syria. He described two weeks of beatings with cables and fists, followed by nearly a year in a tiny, windowless cell. During those first two weeks, he said, he falsely confessed to having gone to a terrorist camp in Afghanistan.
“At that time, I was completely broken. I would have confessed to anything to stop the torture,” he said.
After pressure from his family and civil rights groups convinced the Canadian government to intervene, he was finally released. A Canadian government inquiry ultimately found there was no evidence that he had ever supported terrorism, and he ultimately won a $10 million judgment in a lawsuit against Canadian authorities.
“I am not the same person I was, and I think I never will be,” Arar said. But, he said, the experience has awakened him to the excesses of government in the name of security. He now publishes an online magazine which covers those issues.
Dina Temple-Raston and Reporting on Terrorism
Temple-Raston spoke about the challenges of reporting on such American-born-or-raised jihadists as Samir Khan and Yousef al-Khattab and the close to 30 Somali youth from Minnesota who have left home to join al-Shabab, a jihdist army in Somalia. [UPDATE: Samir Khan, along with fellow U.S.-born jihadist Anwar al-Awlaki, was killed by a drone strike in Yemen on Sept. 30, 2011)
She said many of these fall under what she called “Jihadi light,” disaffected young men who “not focused on the religion, it’s the adventure of it all.” That was particularly true of people who travelled to Afghanistan to join al Qaeda before the 9/11 attacks. Afterward, she said, it would be harder to make the claim that they didn’t know the group’s aims.
Temple-Raston also described the case of Bruce Ivins, the former Army researcher whom authorities say was the culprit behind the 2001 anthrax attacks which killed nine people. After Ivins committed suicide in 2008, Temple-Raston managed to interview his brother Charles, whom she said believed Bruce Ivins was “completely innocent.”
Temple-Raston described showing Charles Ivins FBI affidavits which laid out the evidence against his brother. She said she watched as he came to the awful realization that his brother might have been guilty.
When her story ran on the air, she said, she knew that Charles Ivins was hurt. “I always feel really bad. I had shattered everything he ever thought about his brother,” she said.
The episode, she said, demonstrates that for all the overheated rhetoric in the blogosphere and cable news outlets, many journalists do their work with the realization that “there are real, live people involved” and that they “have a great deal of responsibility.”
“You find that you can change people’s lives by talking to them. That’s what I did,” she said.
Copyright © 2011 Ken Fountain. All rights reserved.