Degraded justice

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President Bush's successor in the White House should transfer the impending prosecutions of six "high value" al Qaeda detainees allegedly implicated in the September 11, 2001, abominations before military commissions to federal district courts. The commissions are denuded of due process protections and would set ominous precedents for subordinating civilian to military justice.

The war crimes charged against the six are also crimes in the civilian criminal code, for example, terrorism or providing material support for terrorism. The al Qaeda detainees could be prosecuted and sentenced to death in federal courts with all the trappings of due process that define the rule of law. The federal court convictions of Ramzi Yousef for the 1993 World Trade Center bombing, Zacarias Moussaoui for complicity in September 11, and Jose Padilla for material assistance to a terrorist organization confirm that due process is no obstacle to prosecuting international terrorism consistent with national security. Moreover, as Justice Felix Frankfurter taught in McNabb v. United States (1943): "The history of liberty has largely been the history of observance of procedural safeguards." No civilized or sensible system of justice compromises those safeguards and risks error to enable the White House or Congress to appear "tough on terrorism."

Military commissions created by the Military Commissions Act of 2006 highlight the axiom that military justice is to civilian justice what military music is to Beethoven.

In federal courts, the defendant is constitutionally entitled to a trial before an independent and impartial judge and a jury representing a fair cross-section of the community. In contrast, the executive branch plays judge, jury and prosecutor in trials before military commissions. They are a page from The Mouse's Tale in "Alice in Wonderland": "I'll be judge, I'll be jury," Said the cunning old Fury: "I'll try the whole cause, and condemn you to death."

A federal court defendant is entitled to a public trial as a safeguard against judicial bias or prosecutorial misconduct. Military commissions, on the other hand, may close trials to protect national security information, which includes economic data or anything bearing on diplomacy, trade, foreign investment or the military.

Evidence maven John Henry Wigmore sermonized that cross-examination "is beyond doubt the greatest legal engine ever invented for the discovery of truth." Accordingly, the Sixth Amendment stipulates that in all criminal prosecutions, the accused shall enjoy the right "to be confronted with the witnesses against him." Speaking through Justice Antonin Scalia in Crawford v. Washington (2004), the United States Supreme Court held that the Confrontation Clause forbids using testimonial hearsay to convict the accused. The Clause was born from Sir Walter Raleigh's 1603 conviction for treason based on a letter and statements to the Privy Council by an accomplice unavailable for cross-examination. Raleigh likened his trial to "the Spanish Inquisition." Justice Scalia elaborated that, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty."

Military commissions, however, regularly deny the accused a right to confront his accusers. Secret evidence bearing on national security, including intelligence sources and methods, may be admitted. Hearsay is likewise admissible unless the defendant demonstrates that it is "unreliable or lacking in probative value."

Coerced confessions are inadmissible in federal court prosecutions because of the Fifth Amendment privilege against compulsory self-incrimination. Military commissions, in contrast, may admit coerced testimony, including statements extracted by waterboarding.

The constitutional right to a jury trial in federal prosecutions requires unanimous verdicts. Military commissions are empowered to convict by a two-thirds vote.

The Sixth Amendment endows the accused with a right "to have compulsory process for obtaining witnesses in his favor." The accused before a military commission is limited to a "reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense."

Military commissions may exclude the defendant from the trial to protect classified information, whereas the accused in a federal court prosecution enjoys a constitutional right to be present throughout.

Other than the odiousness of their alleged crime, none of the six al Qaeda detainees raise unique or difficult problems of proof that might justify shortchanging due process. Khalid Sheikh Mohammed, for instance, is the self-described mastermind of September 11 who has boasted of his responsibility at a Guantanamo hearing in March 2007. Ramzi bin al Shibh was the alleged intermediary between the September 11 hijackers and al Qaeda leaders who shared a flat in Hamburg with paramount hijacker Mohamad Atta. Walid bin Attash allegedly trained the hijackers and confessed to a closed military tribunal responsibility for the USS Cole attack and the U.S. Embassy bombings in Kenya and Tanzania.

Finally, even if the al Qaeda defendants were acquitted in a federal criminal prosecution, they would not gain freedom. They would remain under indefinite detention as unlawful enemy combatants at Guantanamo Bay.

Prosecuting the al Qaeda detainees in federal court with full procedural safeguards would mark one of the Constitution's finest hours. To prosecute them before military commissions would degrade the rule of law both domestically and abroad.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.