If, by some miracle, the commissions swim, they will fundamentally
alter the debate over terrorist trials. If the military can conduct an open
proceeding that provides a reasonable opportunity to litigate difficult
questions regarding torture by genuinely testing the government’s evidence that
may have been derived (directly or indirectly) from such techniques, it might
just succeed in using this trial to create legitimacy for its new institution
of international justice. To be sure, the controversy over military commissions
will not go away entirely; many people in the United States and its allied
countries are opposed to them in principle. But a successful, fair trial of
this magnitude would dissipate the controversy considerably. Most people, after
all, don’t know how trials under the Military Commissions Act differ from those
under the Federal Rules of Criminal Procedure or the Uniform Code of Military
Justice. They know only that a lot of other people believe these trials will
offer kangaroo justice. To the extent that the commissions turn out to be more balanced
than that, public anxiety will ease and the administration may be able to
normalize them.
If the trials fail, however, the commissions will probably never
recover. Trying Al Qaeda’s top dogs is their whole purpose, after all. If they
can’t handle this kind of case, and handle it better than any existing
alternative, what good are they? There are two ways for the commissions to
fail. If they make conviction too easy for the government, they will confirm
the worst fears of human rights groups, liberals, and America’s European allies. They
will fail, in other words, by succeeding. The second possibility is that--with
every imaginable issue up for litigation in this case--they will collapse under
the sheer weight of the task before them, and never really get off the ground.
Either failure will send policymakers back to the drawing board, forcing them
to decide the same question the Bush administration faced six years ago: whether
to adapt federal court trials to the challenges of international terrorism or
whether to try something new.
It is also possible that the commissions will neither sink
nor swim but tread water--that is, produce a marginally credible trial but one
with a lot of rough edges that still attract international and domestic
suspicion and criticism. This may be the most likely outcome. And if it comes
to pass, it will suggest that the commissions may be a work in progress--the kernel
of a good idea implemented with inadequate imagination and respect for the
development of the American legal system since the military last used
commissions in the wake of World War II. The good idea is that terrorist cases
require some non-trivial departures from conventional federal court norms. The
inadequate imagination lay in the administration’s too-strong reliance on legal
models developed for warfare, rather than developed for the peculiar task of
fighting terrorism. The trial of KSM and his co-defendants may end up working
at some level and still highlight the need for further development of a trial
system adapted for this purpose, not imported from past wars.