TRIALS BY FIRE - Belfer Center for Science and International Affairs

live.belfercenter.org

TRIALS BY FIRE - Belfer Center for Science and International Affairs

military commission. Instead, Abdulmutallab faces six indictments in a civiliancourt in Detroit. 367In the future, it is likely that the Obama Administration will encounter furtherlegal hurdles while implementing a procedure to try the thousands ofprisoners currently detained in Afghanistan. The Administration has recentlygranted these prisoners the right to challenge their detention, but no resolutionhas been reached on how to prosecute them for the crimes they are allegedto have committed.Military commissions present not only a different set of legal issues than docivilian trials, but also have both advantages and disadvantages to civilian trialsfrom a counterterrorism policy perspective. The primary upshot of tryinga detainee by military commission is that even given the new procedural protectionsprovided by The Military Commissions Act of 2009, less restrictiveevidentiary rules maximize the odds of a conviction in cases where evidence isflimsy or was retained through coercive means.However, since US allies view the military commissions system—even withgreater procedural protections in place—as illegitimate, trying detainees bymilitary commission has the effect of decreasing the likelihood that allies willcooperate by providing critical evidence and witnesses. In fact, when federalprosecutors in 2009 began to build a criminal case against KSM for a civiliantrial, they found far greater cooperation from US allies. In particular, Germany,France, and the Great Britain all volunteered evidence and witnessesfor the trial. 368Finally, it is important to remember that military commissions have not yetbeen successfully employed on a broad scale to try suspected terrorists andother enemy combatants. Since 9/11 only three people have been convicted bythe US through military commission trials. By contrast, hundreds have beenconvicted in federal court of terrorism-related crimes. And of the three convictedby military commission, two were subsequently deported and are nowliving freely overseas.Belfer Center for Science and International Affairs | Harvard Kennedy School133

More magazines by this user
Similar magazines