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NewsReal Blog Interview: Military Tribunal vs. Federal Trial: Obama’s Ping Pong Game

Posted on March 13 2010 10:20 am
Elise Cooper is a freelance author focusing on the conservative point of view on issues involving national and homeland security. Her articles have been published by various conservative blogs, magazines and Republican newsletters.
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There is much speculation on whether President Obama will overrule his attorney general and change the venue and the type of trial the terrorists will be given. NewsReal Blog interviewed those with first-hand knowledge for their opinion on what type of trial the terrorists should have and where it should be held. Weighing in with their opinions: Congressman Tom Rooney (R-FLA), a former JAG officer, Kyndra Rotunda, a Professor at Chapman School of Law in Orange, California and author of Honor Bound: Inside the Guantanamo Trials, and Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others for the 1993 World Trade Center bombing and is now a contributing editor for National Review Online.

NewsRealBlog: Should the terrorists be tried in a federal court or a military commission?

Andrew McCarthy: The military system works because the terrorists would not have access to classified information. A military defense attorney, who has a security clearance, would view the classified information but would not be allowed to share it with the defendant.

Congressman Tom Rooney: A military commission is needed to protect the integrity of our federal court system. Eric Holder has stated to the outside world that military commissions don’t have the appearance of being fair. The problem is that the Obama administration has said that they will detain Khalid Sheikh Mohammed (KSM) even if found not guilty. What kind of perception is that: trying people, finding them not guilty, and then sending them back to jail?

NRB: Do you agree with the Obama administration’s decision to try different terrorists in different systems, the federal court and the military commission?

Kyndra Rotunda: NO. Military commissions are ok for some detainees, why not for others? KSM, for example, planned the attack on the World Trade Center, as well as the Pentagon. I can’t think of a more significant military target than the Pentagon. I don’t think there is a good distinction here. Understand that the whole idea for the rules of war is to try to limit the civilian casualties.

NRB: If you were advising President Obama what would be your argument against a federal trial?

McCarthy: NATIONAL SECURITY. In a federal trial there is the possibility that national security secrets would be made public. Rounds of information would be given to the enemy during wartime. Our intelligence methods, practices, and sources need to be protected. The 20th hijacker’s, Zacharias Moussaoui, trial is a cautionary tale on how we dodged a bullet. Moussaoui defended himself to try to gain access to the raw intelligence and the ability to question al Qaeda members.

NRB: Doesn’t the Classified Information Procedures Act (CIPA) protect the privacy of the information?

McCarthy: CIPA is not a cure all for the classified information problems. What CIPA allows you to do is litigate before trial what classified information is admissible. If the information is relevant or admissible the defense gets it whether it’s classified or not. If the government does not want to give out the information there is the possibility that the case will be dismissed. In a military commission it is written into the law that the defendant will not be able to view classified information.

NRB: Does your past experiences influence your opinion on the type of trial?

I think the military tribunals are a good process and there will be fair hearings. There has been a lot implemented to ensure the procedures are fair and that the terrorists are offered all kinds of rights. As a prosecutor at Guantanamo I saw the pendulum swing in favor of the defense. Defense lawyers had a distinct advantage over prosecutors because they were allowed to talk freely to the media – and they took advantage of that opportunity and attempted to try their cases in the court of public opinion. Prosecutors were barred from responding, even to correct inaccuracies. One Chief Prosecutor, Colonel Morris Davis, attempted to respond to the inaccuracies. When he did, defense counsel filed motions against him and also tried to have him disbarred by the DC Bar. Ultimately, the DC Bar ruled in his (Colonel Davis’s) favor and decided that he was well within his rights to respond and correct inaccuracies, but it was a long time coming. The rest of us were gagged.

I remember that during the First World Trade Center trial the prosecutors were directed to provide a list of names of co-conspirators to the defense. Somebody in the defense camp gave it to an al Qaeda operative. This enabled them to go to school with a valuable piece of intelligence. This would never have happened with a military tribunal. The defense will not be able to see classified information.

Rooney: I know from experience that those involved in military commissions are top notch people. There is an unfair stigma that we are not going to do things fairly in the JAG corp. It gives our system of justice in the military a black eye that it does not deserve. The JAG corp stands for justice. Military commissions were good enough for Washington, Lincoln, and FDR yet it is not good enough for Obama. It drives me crazy that no one can answer the question why.

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