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Military Law

A Section of the Virginia State Bar.

Military Law Newsletter - Spring 2010

Military Law Newsletter Spring 2010

Khalid Sheik Mohammed Conviction for Dummies – The Beauty and the Beast

By Maj. (Ret.) Eric Montalvo, Esq., Partner at Puckett & Faraj, PC, in Washington, D.C. and former Marine Corps Judge Advocate General (JAG). Eric currently specializes in national security law, military criminal law, and military administrative law. He has handled several Military Commission cases including U.S. v. Al Bahlul, U.S. v. Hawsawi (the alleged 9/11 co-conspirator), and the case of the U.S. v. Jawad, fighting for and securing the release of one of the youngest Guantanamo Bay detainees in 2009.

The careless approach to the issues surrounding all things Guantanamo Bay is an affront to the Constitution and the credibility of our legal institutions. As the most recent flip- flop by Attorney General Holder regarding the prosecution of Khalid Sheik Mohammed (KSM) demonstrates, the original quick and forceful end of Guantanamo has not, by association, led to the end of indefinite detention.  The apparent conundrum is fractured into two basic issues which are the venue of the trial and the forum to be used.  While the decision of where and how to prosecute is one of the most hotly contested contemporary political issues, there is a way ahead that will restore legitimacy to our broken system.

The conventional wisdom among legal scholars is that the United States should use the federal court system to prosecute KSM and do so in a location that provides for security while containing costs.  The Obama Administration spent close to a year figuring out that the federal court system provided the most credible and effective option for prosecution, however, they failed to foresee the incredibly high security costs, political backlash, and emotional anguish brought upon New York’s citizens once again. This is where the plan derailed and now the Attorney General is contemplating the placement of KSM back into the Military Commissions. The answer lies in the fusion of these two ideas – holding federal court aboard Guantanamo Bay where a virtually brand new multimillion dollar state of the art court room awaits usage.

The legitimacy of federal courts compared to other prevailing options is truly without question.  Federal courts have repeatedly demonstrated the ability to prosecute and successfully convict numerous alleged terrorists such as the "shoe bomber" Richard Reid, Jose Padilla, the "American Taliban" John Walker Lindh, the Lackawanna Six, and Zacarias Moussaoui.  These examples demonstrate a capacity of our federal courts to handle the unique and complex issues latent in prosecuting alleged terrorists ranging from the pursuit of capital punishment to the National Security legal morass.  The implications regarding the legitimacy of KSM’s prospective conviction impact our strategic and tactical interests as well as our moral authority in the war on terror.  Our nation is at war and service men and women are dying to protect American democracy embodied in the principle of a nation governed by the rule of law.  Due process is not a dirty phrase or defense parlor trick.  When notions of due process are adhered to justice is typically served regardless of the result.  To run away from the gold standard in criminal justice for fear or concern of political consequence is antithetical to the whole purpose of the Bill of Rights, drafted to preserve the rights of the people against an unchecked government disabusing one of their rights based on what the government perceives to be its needs.   

Assuming that the relevant parties agree that federal courts are the appropriate forum to prosecute the next question becomes what venue.  The Department of Defense has spent hundreds of millions of taxpayer dollars on the facilities aboard Guantanamo Bay.  This includes a federal prison modeled after a stateside federal prison as well as a state of the art court room specifically designed to prosecute high value detainees.  The ability to handle national security issues and physical security is unparalleled and gathering dust.  Using federal criminal law in a specifically tailored court venue seems like an obvious but illusive solution to the current conundrum.  Judges travel all the time.   
Pursuant to the Judiciary Act of 1789 the justices of the Supreme Court of the United States had the responsibility of riding circuit.  The practice of bringing justices to the fight can be traced all the way back to the days of King Henry II.  This practice is still alive and well throughout the U.S. federal courts.  Federal judges from the United States Court of Appeals for the Ninth Circuit, military judges, and judges from Department of Hearings and Appeals routinely travel to proceedings.  Indeed, the military commission judges, prosecutors, defense counsel, witnesses, experts, 9/11 family members of victims and reporters have all traveled routinely to the base for proceedings.   

Given the pervasive need to access classified material and to engage in investigative travel to combat zones the Department of Justice could also enlist support counsel resident within the military commissions system as resource counsel.  Relationships are already established in this regard and these noteworthy military litigators on both sides of the aisle could facilitate movement to trial and provide access/understanding to some of the more esoteric issues embedded within these cases.

This Beauty (federal law) and the Beast (Guantanamo) approach will save countless tax payer dollars, avert perpetual political inertia, and reacquire some legitimacy on this issue in the world arena. The hails to close Guantanamo were sourced in the idea that it was a quintessential example of all that was wrong with the war on terror.  With some compromise and transparency there exists a fleeting opportunity to recycle Guantanamo Bay from a symbol of shame to an example of Constitutional perseverance.

Statements or expressions of opinion or comments appearing herein are those of the contributors and not necessarily those of the State Bar, Section or the editor.