Nearly two decades after the September 11 attacks, we are still waiting for justice to be administered to the majority of the Al Qaeda suspects being held at Guantanamo—including the alleged masterminds behind the attacks. Recall that members of the Bush Administration and Congress had argued that only a military commissions process could safely and expeditiously address the circumstances of these suspects and the crimes with which they are charged. They maintained that the federal courts – where terrorism cases have been traditionally and successfully tried, both prior to and after September 11 – were inadequate to the task.
Time and experience have proved these arguments wrong. Today, the military commissions process has stalled and there is no realistic expectation that the commissions will dispose of these cases any time in the near future. There are many reasons why the promise of swift justice has proved false, but among the most prominent are torture and the nature of the commissions process itself.
The basic problem with torture is that it remains anathema to any mature and respected system of justice. Yet, evidence obtained by the C.I.A. through torture and “enhanced interrogation techniques” has cast a dark shadow over the commissions process. Even if the specifics continue to remain hidden behind a wall of secrecy, it is undisputed that some confessions, as well as evidence derived from those confessions, were obtained through torture or its equivalent. This simple fact continues to stymie the military commissions, as judges struggle with how much access defense attorneys should have to the facts surrounding the coerced interrogations, and prosecutors fight the release of any information, claiming the need to protect national security interests.
Had these cases been tried in federal district court, a long-established precedent would have allowed for the quick resolution of these issues: confessions obtained as result of torture and evidence derived from coerced interrogations are simply not admissible in federal criminal proceedings. A federal district court judge would have required the government long ago to decide whether to move forward with these cases given the state of the evidence and, if it had chosen to proceed, to prosecute them cleanly. The dithering and stonewalling that has been the hallmark of the commissions process would simply not have been allowed.
The other problem with the commissions is that, unlike the criminal process in federal court, there is relatively little consistency on the bench. Because the commissions are staffed by military judges who regularly rotate in and out of service on the commissions, there is a great deal of time spent playing catch-up and a reduced ability to move matters forward: regardless of the issue before the commission at the moment, another judge inevitably will be dealing with the details down the line, as well as re-litigating issues “decided” by previous judges.
In the criminal process in the federal courts, by contrast, matters generally will be assigned to a single judge from among those designated to sit in a particular courthouse. That judge will own the case for all intents and purposes, from preliminary proceedings down through disposition, whether the case is eventually resolved through a plea agreement or a trial.
Because a single federal judge manages the case, proceedings in district court would not be repeatedly delayed so that a newly assigned judge could get up to speed. Rather, the same judge who ruled on a preliminary evidentiary motion, for example, would consider the defendant’s later motion to reconsider. And, because in the federal system judges know they alone will be responsible for managing the case, they have every incentive not to ignore issues or delay rulings—another judge will not coming along later to make the more difficult calls.
Among the many purposes of the criminal process is closure. The September 11 attacks have escaped closure. Every day that passes without resolution of the central criminal justice issues at the core of the attacks represents a needless extension of that tragedy. It did not have to be this way: the federal courts were up to the task of administering appropriate justice almost two decades ago, no less than today.