JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that fear and politics notwithstanding, trial in US federal court will be the best option in most, if not all, terrorism cases….

Since President Bush first announced a plan to create military commissions, in November 2001, there has been ongoing debate over where those suspected of committing or attempting to commit terrorist acts should be tried. Over the past several months, the focus of that debate has changed and intensified. Politicians and others opposed to the Obama administration’s plans to try some of the September 11 suspects in federal court have struck up a new theme – that these individuals do not and should not enjoy the same rights that are enjoyed by United States citizens, and should be tried before military commissions. Critics of the President have argued that, if terrorism suspects are tried in federal court, they will have to be read their Miranda rights on the battlefield, and that they will have to be provided lawyers who will complicate these cases. As well, critics maintain that, if these suspects are tried in federal court, the government will be forced to disclose classified evidence and these criminal proceedings will expose valuable intelligence information.

Of course, these claims make for good sound bites, and after the attempted airplane bombing in December 2009 and the even more recent bombing attempt in Times Square, fear of terrorism has once again got the attention of many Americans. Massachusetts Senator Scott Brown has gone so far as to attribute part of the reason for his surprising win in January’s special senatorial election to these concerns.

Nonetheless, it is important to look beyond the sound bites to see just how different a trial in a military commission might be as compared to a trial in federal district court. Last month, the Department of Defense released the Manual for Military Commissions (MMC). The MMC provides the detailed set of rules and procedures that are to apply to trials in military commissions. A careful examination of the rights to counsel in military commissions and how the military commissions will handle classified information reveals that these processes will not look all that different than the procedures in federal court.

Rights to Counsel

A suspect’s rights to counsel in the military commissions are considerable and in some regards even more expansive than in federal court. Under Rule for Military Commissions (R.M.C.) 506, an accused in a military commission has the right to be represented by a military defense counsel free of charge. The provision of defense counsel does not depend upon financial need–it is automatic. In addition, the Chief Defense Counsel can, at his or her discretion, detail a second military counsel to represent the accused, also free of charge, and given the complexity of these cases, this second counsel will almost always be detailed.

In addition, an accused in a military commission has the right to make a by-name request of any military attorney to represent him, and if that attorney is reasonably available, he or she will be appointed to the defense. An accused also has the right to be represented by civilian counsel, at no expense to the government. Finally, in all death penalty eligible cases, the accused has the right to a second defense attorney who is “learned in the applicable law relating to capital cases.” This second learned counsel also will be appointed at no expense to the accused. Because there are very few capital cases tried in the military, in many, if not all death penalty eligible cases, this second attorney will most likely be a civilian.

In contrast, in federal court there is no automatic right to a government provided defense counsel–a defendant must first show a financial need. In federal court, moreover, there is no right for a defendant to make a by-name request of any government attorney to represent him or her. The right to the appointment of a counsel learned in capital cases in federal court is very similar to the rule in military commissions, except that the appointment of this counsel is not automatic in federal court; the defendant must formally request such representation.

Classified Information

Classified information under the military commission rules is treated under military commission rules in much the same way as it would be treated in federal court. In federal court, classified information is governed by the Classified Information Procedures Act (CIPA), enacted in 1980 to manage the tension between the government’s interest in preventing the disclosure of classified information and the criminal defendant’s need for such information in his or defense. The law aims to preclude the government from denying the defense access to relevant information that happens to be classified, and the statute essentially compels the government to choose whether to disclose the information (possibly in an altered but usable form), or to forgo the prosecution.

Under Military Commissions Rule of Evidence 505, the guidelines now explicitly provide, for example, that the accused is entitled to see any information admitted into evidence. As under CIPA, then, the accused is not to be tried on the basis of secret evidence. Further, Rule 505 requires there be reciprocity–if a judge allows an accused to introduce classified information in his defense, then the government must disclose the evidence it plans to use in rebuttal. Should the government refuse to do so, the judge may forbid the government from making a rebuttal. This is very similar to the balance CIPA strikes–to compel the government to choose whether to proceed along a certain path requiring the disclosure of classified information, or to abandon that path for one in which the evidence against the accused may be disclosed, if that is possible.

Conclusion

A comparison of the rights to counsel in federal court and military commission would seem to contradict the concerns of those critics who want terrorism cases tried by the latter to prevent suspected terrorists from “lawyering up.” And it seems that, in respect to protecting classified information from disclosure, the military commissions will operate under guidelines similar to those that apply in federal court. These comparisons suggest that we can set aside our fear that trying terrorism suspects in federal court necessarily will make securing convictions and punishment appreciably more difficult to obtain and impose.

Indeed, if we are going to have a serious debate about where terrorism suspects should be tried, it should be driven by substantive issues and not headline-generating sound bites. For us, the overriding substantive question is this: which forum is most capable of delivering justice that will stand the test of time, producing a judgment that will have the respect of the American people and the world? We conclude that trial in federal court will be the best option in most, if not all, terrorism cases.

Federal courts have many years of experience with classified evidence and the delicate balance between protecting individual rights and protecting national security interests. In contrast, the judges likely to sit on military commissions have likely either never tried, or have limited experience with, cases involving the use of classified evidence, since these cases come up only very rarely in the military courts-martial. Since 1999, there has only been one reported case by the Court of Appeals for the Armed Forces in which classified evidence was an issue.

Further, many of these cases, including the trial of the September 11 conspirators, are very complex joint trials involving multiple defendants. These complex trials are quite common in federal court. They are much less common in military courts-martial, where joint trials involving multiple co-defendants are rare. This means that the military judges in these cases would likely be presiding over the first joint trial in their careers.

Perhaps most importantly, trial of these cases in federal court would be conducted using established procedures that have been scrutinized by the appellate courts, while all of the rules and all of the procedures in the military commissions are new and untested. There is virtually no established case law, meaning that every single rule is subject to endless rounds of challenge and appellate review. This explains why, after over nine year, the commissions process has only managed to try three individuals.

When we set aside fear and politics, and focus on the actual goal of doing justice for everyone, including–perhaps especially–for the American people, trial of terrorism suspects in federal district court is the appropriate choice.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate.