How Hard Will It Be to Convict Khalid Sheikh Mohammed?

There were multiple concurring opinions, as well as a dissenting opinion. There was much disagreement as to whether the Supreme Court had the authority to hear the case, even though a majority held that it did. The concurring opinions also reiterated the wide divergence from the procedures and rights of the accused in a general court martial and those in a military commission of the sort by which Hamdan was to be tried.

Very soon after the decision in Hamdan, Congress began considering legislation to authorize military commissions. A bill, substantially as requested by President George W. Bush, was passed by both houses of Congress and was signed into law on October 17, 2006. The Military Commissions Act (MCA) suspended the right of habeas corpus and allowed evidence seized in this country or abroad to be taken without a search warrant. It bars evidence obtained by cruel and inhumane treatment, except that obtained before December 30, 2005, when Congress enacted the Detainee Treatment Act.

In Boumediene v. Bush, a divided Supreme Court held that the suspension of habeas corpus as provided in the MCA was improper. In an article here, I argued that the Supreme Court's majority has made a pig's breakfast of the whole matter, and it is impossible to predict what will happen next other than inordinate delays in adjudicating the rights of the detainees.

Under Section 948b of the new law, various provisions of the Uniform Code of Military Justice (UCMJ) were expressly made inapplicable to military commissions:

(d) Inapplicability of Certain Provisions -- (1) The following provisions of this title shall not apply to trial by military commission under this chapter:

(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.

(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

(2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by this chapter.

The Boumediene Supreme Court had observed in 2006:

Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is "closed and accusatorial." See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

Since these matters were not before the Supreme Court, and were therefore mere dictum rather than a holding, it would be a mistake to attach great significance to them. Still, in view of the current composition of the Supreme Court, it would probably be an even greater mistake to ignore them.

It is doubtless true, as Mr. Horowitz observes, that civilian trial of a terrorist detained at Gitmo is likely to divulge all sorts of information to others, that it will be necessary for the prosecution to weigh very carefully what evidence can be used consistently with the national interest in security, and that in even the best of circumstances, it will be "a propaganda gift to Islamic murderers who will turn the courtroom into a media circus to promote their hatred against the Great Satan."

There is another problem, however, which may trump these. I refer to the right to a speedy trial, which the MCA had expressly obviated in trials by military commission. It applies in courts martial and also in civilian criminal proceedings. If I were defense counsel for Khalid Sheikh Mohammed, one of the first things I would do would be to file a motion for dismissal of all charges because he had been captured on March 1, 2003, and incarcerated at a secret prison until September of 2006, when he was transferred to Gitmo; numerous witnesses who might have testified on his behalf are now dead or missing; and it would be impossible, at this late time, for there to be a speedy trial by jury as guaranteed by the Constitution. There are often reasons for not having a speedy trial, but a delay of six years is a tad much to base on confused governmental policy. The New York Times put it this way:

If [President Bush] and Vice President Dick Cheney had shown more faith in the laws and the Constitution, the alleged mass murderers would have faced justice much earlier.