Broken Government

Published — December 10, 2008 Updated — May 19, 2014 at 12:19 pm ET

Lack of due process for terrorism suspects

Bush’s criticized military commissions try terror suspects instead of U.S. criminal courts


President Bush’s military commissions for trying suspected terrorists have fought legal challenges for years, and they have only produced three convictions so far. Before 9/11, terrorists such as Ramzi Yousef, architect of the 1993 World Trade Center bombing, were routinely tried in U.S. criminal courts. Two months after the 9/11 attacks, President Bush issued an order setting up the commissions, saying it was “not practicable to apply . . . the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In 2002 the Department of Justice advised that Geneva Convention protections for prisoners of war did not extend to members of Al Qaeda. This set off a series of battles among the executive branch, Congress, and the courts. After defeats in the Supreme Court, Bush enlisted the help of Congress, which passed the Military Commissions Act in 2006, reestablishing many of the provisions in the president’s original order. But the Supreme Court declared parts of it unconstitutional. In 2007 David Hicks, an Australian who converted to Islam and served with the Taliban in Afghanistan, pleaded guilty and was returned to Australia. In 2008 military commissions finally convicted Salim Ahmed Hamdan, Osama bin Laden’s driver, and Ali Hamza al-Bahlul, bin Laden’s personal secretary. The Department of Defense’s website lists 13 additional cases, one including all six “Sept. 11 Co-Conspirators.” Among the defendants is 9/11 mastermind Khalid Sheikh Mohammed, who, seven years after the attacks, still has not been fully tried.

President-Elect Obama reportedly is considering bringing accused terrorists to the United States for criminal trials in federal courts. Joe Dellavedova, a Department of Defense spokesman, said that for now the military commissions are going forward with trials scheduled for December and January. “The commissions have been tested, but that’s what the legal system is about,” Dellavedova said. On December 8, Khalid Sheikh Mohammed and other alleged 9/11 plotters offered to confess to the military commission, although reports from the court at Guantanamo indicated that some of the men might condition their pleas on a guarantee of the death penalty, a sentence that they would consider martyrdom.

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