Keith J. Allred presided over the military commission trial of Salem Hamdan. His piece on military commissions is the lead commentary in this morning’s Wall Street Journal. Mr. Allred points out the greatest harm, should Khalid Sheikh Mohammed and his fellow co-conspirators be tried in federal court.
Unlawful combatants are entitled to be tried in a forum that meets the standards of the Geneva Conventions Common Article 3: a “regularly constituted court that afford[s] all the judicial guarantees … recognized as indispensable by civilized peoples.” A military commission meets this standard, and trying unlawful combatants in a military commission advances important national interests in encouraging compliance with the laws of armed conflict.
Much has been said to impugn the military commissions as unfair, inadequate forums for the trials of these and other unlawful combatants. But the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants. Congress understood this scheme when it established military commissions to try unprivileged belligerents, as contemplated by Common Article 3. Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war. [emphasis added mine] This is a dangerous precedent, and there is no need for it.
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The president has suggested we need these trials in federal court because Guantanamo Bay has left a sour taste in the mouths of some of our allies. Even if this is true, selecting a few defendants to be tried elsewhere will not change that perception. But giving civilian trials to these worst-of-the-worst unlawful combatants upsets the important and longstanding Geneva scheme for encouraging compliance with the laws of war. … READ THE REST
Providing war criminals with Constitutional protections undermines the Geneva Conventions and rewards terrorists for targeting civilians; al Qaeda targeted civilians on 9/11. Unnecessarily affording unlawful enemy combatants with a federal trial increases the danger to civilian non-combatants.