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Should terror suspects face tribunals or civilian courts?

Federal law requires airline bombing suspects to be tried in civilian courts

Posted: Friday, February 05, 2010

COLUMBUS, Ohio - Republican senators sent President Obama a letter criticizing his decision to try Umar Farouk Abdulmutallab in a civilian court. They said it was "a missed opportunity to collect timely intelligence" from Abdulmutallab, arrested for trying to blow up a plane as it approached Detroit. They think we should try Abdulmutallab in a military commission, as set up by President Bush in 2001, and as cleaned up a bit since then.

There are good reasons that Obama should ignore the GOP senators.

For one, it would be illegal to use a military commission for Abdulmutallab. There is no basis for trying him anywhere but in the regular courts.

If the facts are as the press has reported them, there is a basis for charges under the federal criminal code. Military commissions are supposed to deal with an entirely different body of crimes - offenses in violation of the laws of war. The senators might respond that we are in a "war on terror," but whatever President Bush meant by that term, it is not a "war" that brings the laws of war into play.

As for intelligence, Abdulmutallab is apparently talking freely, even after being warned that what he says may be used against him. It didn't take waterboarding to get him to explain how he came to do what he did.

The discount justice dispensed by military commissions is counterproductive. Military commissions are fine on the battlefield, and that is what they are for. But that is not what we face with an airplane bomber.

We have courts that can deal with this kind of crime. Richard Reid, a previous airplane bomber, was tried in a regular court of law, with no one clamoring for any other mode of trial. Quite a few terrorist suspects have been prosecuted in civilian court and are serving time in federal prisons. Trying Abdulmutallab in a military commission would set a bad precedent.

Advocates of military commissions often cite Franklin Roosevelt, as if he thought they should be used freely.

Roosevelt did order a military commission on one occasion during World War II (a real "war") - to try a group sent by the German government that secretly landed on the East Coast.

Their assignment was to sabotage war production plants, but the German government picked the wrong people. Several in the group apparently participated as a way of defecting to the United States and tried to turn themselves in. The FBI - not the military - investigated, and once the circumstances were unraveled, it was clear to the FBI that the plot presented little danger.

But J. Edgar Hoover, head of the FBI, concealed these circumstances from Roosevelt. The president thought the group posed a serious threat and ordered a military commission. The Supreme Court was taken in as well when the group challenged Roosevelt's order.

A century earlier, the Supreme Court had said military commissions cannot be used so long as regular courts are functioning. Just after the Civil War, the court refused to allow the trial by military commission of a Southern sympathizer.

There was no reason, the court said then, not to use a civilian court since the war was over and regular courts were functioning (case of Milligan, 1866). But this time the Supreme Court said it was OK (case of Quirin, 1942).

Would Abdulmutallab divulge more intelligence if treated as a military prisoner? The methods used to interrogate under Bush's watch often produced bad information. The criminal justice system often gets good information.

A cooperating suspect hopes for a lighter sentence. In a case like Abdulmutallab's, the suspect may relish the platform to speak and may say more in public than he would in a basement cell.

Abdulmuttallab should be tried the old-fashioned way. That will do just fine.

• John B. Quigley is a professor of international law at Ohio State University. Readers may write to him at The Michael E. Moritz College of Law, Ohio State University, 55 W. 12th Avenue, Columbus, Ohio 43210; e-mail: Quigley.2osu.edu.



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