What is the Point of a Military Trial?
I mean the title of my post today quite literally. The U.S. has charged Canadian Gitmo detainee Omar Khadr with murder in connection with his having thrown a grenade that killed Army Sergeant Christopher Speer during fighting in Afghanistan. Khadr was allegedly part of al Qaeda.
Throwing a grenade at soldiers looks more like warfare and less like terrorism than most of the things that al Qaeda members have done, even if it constitutes a violation of the law of war because al Qaeda forces don't abide by the laws of war. (For example, they don't wear distinctive uniforms, thus permitting them to blend in with, and thereby endanger, the civilian population.) But that still leaves the question of what advantage the U.S. gets from trying the likes of Khadr, rather than just continuing to detain him as an enemy combatant.
One possibility is that the government fears an eventual Supreme Court ruling that enemy combatants cannot be held forever. If so, there would need to be some reason other than simple incapacitation to continue holding them. But there are two difficulties with this theory. First, it's not at all clear that the Supreme Court would place time limits on the holding of enemy combatants, especially after the Military Commissions Act of 2006. Second, the government does not appear to be pursuing military trials as a means of holding detainees longer than it otherwise could. For example, Australian David Hicks got a plea deal in which he will only serve 9 months.
But part of the Hicks deal is his agreement not to make public statements about how he was treated while a detainee. Accordingly, one might think that the point of these trials is to buy detainees' silence about mistreatment. That idea has been floated but it too makes little sense. A much more effective way to keep Hicks quiet would have been simply to keep holding him.
Which brings me back to my genuine puzzlement. Perhaps the Hicks case was an aberration, and the government plans to seek life sentences for Khadr and others. If not, there is a real tactical mystery here.
Throwing a grenade at soldiers looks more like warfare and less like terrorism than most of the things that al Qaeda members have done, even if it constitutes a violation of the law of war because al Qaeda forces don't abide by the laws of war. (For example, they don't wear distinctive uniforms, thus permitting them to blend in with, and thereby endanger, the civilian population.) But that still leaves the question of what advantage the U.S. gets from trying the likes of Khadr, rather than just continuing to detain him as an enemy combatant.
One possibility is that the government fears an eventual Supreme Court ruling that enemy combatants cannot be held forever. If so, there would need to be some reason other than simple incapacitation to continue holding them. But there are two difficulties with this theory. First, it's not at all clear that the Supreme Court would place time limits on the holding of enemy combatants, especially after the Military Commissions Act of 2006. Second, the government does not appear to be pursuing military trials as a means of holding detainees longer than it otherwise could. For example, Australian David Hicks got a plea deal in which he will only serve 9 months.
But part of the Hicks deal is his agreement not to make public statements about how he was treated while a detainee. Accordingly, one might think that the point of these trials is to buy detainees' silence about mistreatment. That idea has been floated but it too makes little sense. A much more effective way to keep Hicks quiet would have been simply to keep holding him.
Which brings me back to my genuine puzzlement. Perhaps the Hicks case was an aberration, and the government plans to seek life sentences for Khadr and others. If not, there is a real tactical mystery here.
posted by Michael C. Dorf @ 8:26 AM
4 Comments:
At 10:58 AM,
egarber said…
Perhaps the administration is looking for a test case to prove the process will incorporate a high "due process" standard. That certainly would help politically, but it could also work as a legal defense if any further challenge winds its way through the courts -- i.e., in case X, we proved that tribunals can be consistent with constitutional due process principles.
At 12:03 PM,
Garth said…
Hicks case is an aberration and, yet it is not.
Hicks had a zealous office defending him who went to Australia to whip up public opinion in Hick's favor.
Cheney's office got involved and authorized the release of Hicks to Australian authorities as en election time favor to the Aussie PM. Provided of course, he doesn't embarrass the administration with a detailed account of their torture techniques.
No doubt he will be roundly feted while, or if, he serves his time.
It is clear the administration is trying to build a better track record on due process. It is very likely, imo, that the Supremes will find that due process requires the courts to hear habeus petitions in the absence of an explicit suspension by congress.
they have also pledged that the MCA provides competent tribunals so it makes sense they will tout each one that goes to "trial."
they have a whole gulag of test cases.
this smacks of the eavesdropping flap with Bush "voluntarily" complying with the law in order to argue mootness.
this is a calculated political decision and a sense of justice plays no role in the calculation.
At 12:05 PM,
Garth said…
hicks is not an aberration if you understand it to be driven by politics as are all Bush decisions.
At 5:59 PM,
Craig J. Albert said…
Here's my back-of-the-envelope theory.
Under my understanding of the rules of war, warring parties can take prisoners and, subject to the norms of international law, hold them as prisoners for the duration of the war. Conventional warfare concludes with a treaty in which provision is made for how prisoners will be exchanged.
Under current doctrine, members of al-Qaeda are not lawful state-associated combatants, and therefore it is inconceivable that a treaty could govern their disposition, because there is no treating counter-party. So, the purpose of a trial is to convert the al-Qaeda prisoners, where possible, into prisoners under a sentence, as opposed to continuing to treat them as prisoners of war under an indefinite hold.
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