A Tale of Two Courts

November 12, 2009  |  Posted by Danielle Belton

While people are going back and forth over military commissions versus civil courts for Guantanamo detainees, they're forgetting a crucial fact: military commissions courts don't work. No matter how much you spin it, no matter how many adjustments to the courts the Obama Administration makes -- the facts remain the same.

In the seven years since 2001, the commissions have only successfully tried 3 detainees, while the civilian court system has tried and convicted 195 terrorists in the same period. If our government truly cares about providing justice for the families of 9/11 victims, civilian courts are the most effective tool we have.

With the federal courts’ conviction record, it makes far more sense to use the system we have, rather than create a bad, unequal clone out of whole cloth.

Said former Gitmo prosecutor Morris Davis in a column for the Wall Street Journal:

(I)t means that the standard of justice for each detainee will depend in large part upon the government's assessment of how high the prosecution's evidence can jump and which evidentiary bar it can clear.

The evidence likely to clear the high bar gets gold medal justice: a traditional trial in our federal courts. The evidence unable to clear the federal court standard is forced to settle for a military commission trial, a specially created forum that has faltered repeatedly for more than seven years. That is a double standard I suspect we would condemn if it was applied to us.

This means, if a conviction is likely you’ll end up in civil court. If the evidence is weaker, it’s military commissions with its lower burden of proof. That wouldn’t fly the snuff test if another country, like Iran, did this to captured American citizens.

As for what’s exactly is wrong with military commissions, Lt. Col. David Frakt explains:

• No requirement for a pretrial investigation, preliminary hearing or grand jury.
• Evidence from coerced statements could still be used in court.
• Detainees could be tried for offenses that are not traditional war crimes, like material support to terrorism, terrorism, conspiracy and “the invented offense of murder in violation of the law of war.”
• Juveniles could still face trial.
• While military commission trials have been retooled to be more similar to civil courts, “(t)the perception that the military commissions are a second-class option remains.”

Also, said Lt. Col. Frakt to the site truthout:

"Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9/11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts."

The real debate of the double-court system should be that there is no real debate. One court is broken, while another has proven time-and-time again to be successful at prosecuting terrorists. One court leaves detainees in limbo, while another brings justice.

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