Gabor Rona on Choice of Forum

I intended this post as a challenge to the political Right, not the human rights community, on military commissions. I was, therefore, a little surprised to receive this note from Gabor Rona, international legal director of Human Rights First, in response:

A lesson of first year law school seems to be missing in your analysis of military commissions vs. Article III courts: While the role of defense counsel is tied to the interest of the client, the role of the prosecutor is to do justice. I believe this notion to be as valid for trial of Gitmo detainees as it is for alleged bank robbers, rapists and child molesters. In fact, perhaps more valid, assuming that people do not rob banks, commit rape and molest children because they perceive the US criminal justice system to be unjust. Alternative, and less robust, due process standards (not unlike “alternative” interrogation techniques) applied in military commissions, on the other hand, very likely do invite a “war against Islam” reaction that al Qaeda, etc. can and do happily exploit. If you agree with my premise, you would not, I think, agree that military commissions may be superior to Article III courts for the reasons that predominate in your laundry list of considerations--namely, how military commissions afford lesser judicial guarantees, making convictions easier. I would not allow, as you do, that the question of choice of forum is "enormously fact-intensive." It is a matter of principle and the principles are due process and non-discrimination. You notably do not explain what you consider the measure of "the system most likely to work best." That is consistent with your sensibilities on the topic, which are, as you note, not guided by any underlying principle.

A few thoughts in response. First, I agree that the prosecutor's job is to do justice, not merely to advocate for his client's position. And when I say--a touch ironically--that my position is unprincipled, I do not mean to say that I believe justice is impossible in a military commission but that we should use commissions anyway for reasons of convenience. I mean, rather, that I have no a priori commitment to any particular trial forum and that I am willing to use any that is lawful. I am also willing to use no trial mechanism but to rely on military detention as overseen by habeas courts--for I believe that is lawful too (as does the Obama administration, the courts, and Congress). To put it bluntly, what I mean is that I want to preserve flexibility within the law--and fundamental fairness is part of the law here. Gabor's point that I have been coy about what I mean by "most likely to work best" is an interesting one. He means, I suppose, that I am concealing a true agenda of lowering standards by way of making convictions easier. Let me be then very clear: I am not concealing any such agenda. I am flaunting it. My anxiety about military commissions is only that I am not confident that they will effectively make convictions easier and I worry that they may in fact make them harder. While their standards are lower in certain respects than those in federal court, they have other features that make things harder at times--jurisdictional limitations and legal instability most importantly. Were I confident in their institutional performance and confident as well that the crimes charged in them today would be deemed war crimes tomorrow, I would have no anxiety in principle about giving a constitutional minimum of due process, rather than all the bells and whistles one gets in a U.S. district court. Indeed, I have no anxiety about the general proposition that prosecutors should use the tribunal in any given case most likely to result in a conviction--as long as trial in that forum would proceed in a fashion that comports with the law. There is an unreality to this whole debate, and it stems from a single fact that we are not really supposed to talk about: Acquittal in the 9/11 case is unthinkable. Nobody is prepared to set KSM free. We do not, in fact, presume him innocent. We know him guilty, and we know it without a trial. Indeed, society's purpose in holding the trial is not, if we are honest about it, to resolve some contested issue of fact about his guilt. It is to validate a judgment made long ago, in which KSM concurs by the way. The trial is a discipline we put ourselves through because we are the sort of people who have trials and make the government prove things. But we do not believe in that discipline so strongly that we would actually release KSM if the government could not prove every element of some offense beyond a reasonable doubt using only admissible evidence. So we face a conundrum: Do we rig a trial under our very rigorous rules? Design a trial system where it's a little easier to get what we want? Or do we just roll the dice under our current system and hope they don't come up snake eyes? I don't believe in rigging trials under any system, and I've never been a big fan of rolling the dice and hoping. So that leaves only the second option. My only problem with it is that it has shown no sign so far of efficacy.