Enemy Combatant Cases in Federal Courts Chart Uncertain Path

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


On January 22, 2009, just days after assuming the presidency, Barak Obama announced that he would close the Guantanamo Bay, Cuba, detention facility where hundreds “suspected terrorists” have been held for years without trial under an official Bush-administration created designation “enemy combatant.” Civil libertarians and prominent constitutional scholars have long advocated the closure of the facility while political conservatives have fought hard in the trenches to keep the internationally-criticized torture facility open.


A liberal policy think tank called Center for American Progress, a staunch ally of the Obama administration, charged in a recently released report that the administration has made a series of blunders following the President’s January 22nd Gitmo closure announcement. The report, authored by Ken Gude, a scholar for the Center, says these blunders will delay Gitmo’s ultimate closure for months. The most significant blunders, the report charged, was the administration’s failure to have enough people in place to handle the difficult closure process and misleading Congress about its intentions.


The Obama administration assigned two task forces to deal with the Gitmo dilemma: one to examine the overall “detention policy” of suspected terrorists and the second to review the files of more than 200 detainees to determine whether they should be prosecuted in federal civilian courts or by military commissions. The most high-profile of these “enemy combatants” were Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks who has been in custody since March 2003, and four of his co-conspirators—all of whom will now be tried in the United States District Court in the Southern District of New York based on a recent decision by U.S. Attorney General Eric Holder.


Just last month President Obama signed the Military Commissions Act of 2009 (officially titled the 2010 National Defense Authorization Act) which changes—but some would argue does not actually improve—the rules governing the military commissions created in 2006 to hear terrorism cases. In 2006 then-Sen. Obama, and 33 other U.S. senators, voted against the “military commission’s law,” calling it a “flawed document” that ran counter to American values.

Human Rights Watch attorney Joanne Mariner wrote in a November 4, 2009 Findlaw column that “the new law begins by tweaking the definition of individuals eligible for trial before military commissions—most obviously by scrapping the phrase ‘unlawful enemy combatant,’ and replacing it with ‘unprivileged enemy belligerent.’ This is cosmetic change, not a real improvement, which mirrors the administration’s decision to drop the enemy combatant formula in habeas litigation at Guantanamo Bay.


“In addition, the new definition sets out three separate grounds on which a person might be deemed an ‘unprivileged enemy belligerent,’ which vary somewhat from the grounds for eligibility included in the previous definition. The third ground, now separate from the previous two, is membership in Al Qaeda, whether or not the member has engaged in or supported hostilities against the U.S. (Under the previous definition, membership in ‘Al  Qaeda, the Taliban, or associated forces’ was relevant to the determination of whether a person had engaged in or supported hostilities, but was not itself a distinct ground for eligibility.)”


Unfortunately, the Obama administration has adopted definitions of “purposeful and material support” similar to the definition established under the Bush administration. The Bush definition essentially said that a person who supports hostilities should be treated the same as those who actually engage in hostilities. The definition of Obama’s “unprivileged enemy belligerent” entails the same conclusion with the only difference being that “support” under the Obama definition must be ‘substantial.” But as Mariner observed: “The test, in both laws, is whether a person has ‘purposely and materially supported hostilities against the United States.’


The Obama definitions will probably not be any more warmly received in the federal judiciary than those formulated under the Bush administration. Several federal judges, who have heard Guantanamo Bay habeas litigation cases, have stated, as Mariner reported, that “there is no basis in the laws of war for treating people who merely support hostilities as belligerents.”

But at least, and some would say significantly, the 2009 Military Commissions Act does limit the class of people subject to trials before these commissions. The new law eliminates the 2006 provision that held anyone determined to be an “enemy combatant” by the Combatant Status Review Tribunal could face trial before a military commission.


Still, there remains the inherent problem as to how these new definitions will be interpreted under the Obama administration.

Mariner offers this guidance: “The ‘war on terror,’ although the new administration now specifies that it is a war against Al Qaeda, the Taliban, and associated groups, has been consistently understood, by both administrations, to be far broader than any traditional armed conflict. People who have committed terrorist acts outside of any war zone, who were in the past prosecuted as criminals, are now labeled combatants or belligerents, and brought to trial in military proceedings.”

And therein lays the legal dilemma: Is Khalid Sheikh Mohammad, and his co-conspirators, “criminal terrorists” or are they “enemy combatants”? By deciding to try these individuals in federal court, the Obama administration has effectively made them criminal terrorists thereby making them “criminal defendants.” And as criminal defendants, they now enjoy a panoply of due process and other constitutional protections not enjoyed by the “unprivileged enemy belligerents” (such as the suspected terrorists accused of being involved in the USS Cole bombing) facing trial before military commissions.


We know that Khalid Sheikh Mohammad, and his co-conspirators, were subjected to horrific torture methods to extract incriminating information about themselves and others. The New York Times reported just last month that the FBI found torture techniques at CIA secret prisons comparable to the infamous “rack and screw.” The Times report was based on newly declassified documents released in connection with a Freedom of Information Act lawsuit filed by the ACLU. One of these documents disclosed what an FBI agent named “Thomas” saw at the CIA’s facility where Ramzi Binalshibh, one of Mohammad 9/11 co-conspirators, was being questioned. While the agent was not permitted to take part in the interrogation process, he was allowed to see the suspect and found him “naked and chained to the floor.”


The FBI was so appalled at the CIA’s handling of “terror suspects” that the agency completely withdrew from any interrogation of these suspects. And with the inherent secretive, classified nature of military commission proceedings, we will never fully know just how much of the incriminating evidence that will be used against “unprivileged enemy belligerents” was the result of torture.


That’s not the case in federal civilian court. The federal district court in New York court will immediately have to confront this pressing constitutional crisis in the Khalid Sheikh Mohammad case. Supporters of the Obama’s administration decision to try these terrorists in civilian court point to the fact that nearly 200 other “criminal terrorists” have been successfully prosecuted in the federal judiciary without any major constitutional difficulty. But the difference between those cases and the case of Mohammad and his co-conspirators is gnawing constitutional issue of torture, especially the incomprehensible magnitude of it.


The New York federal district court must now distinguish the difference between the euphemisms the Bush administration used to justify what every other legal, moral, and political definition classifies as “torture.” For example, water boarding, sleep deprivation, hanging from the walls by handcuffs, and physical beatings became in the Orwellian lexicon of the Bush administration an “alternative set of procedures” and “enhanced interrogation methods” that were “tough,” “safe,” “lawful,” and “necessary” for national security reasons but were not “torture.” President Bush’s infamous words “we do not torture” now hangs over these federal court proceedings.


Will the New York federal district court legitimize the Bush-era torture euphemisms by ruling Mohammad and his co-conspirators were not subjected to “torture” or will it uphold the historical and widely accepted definition of torture? This remains to be seen. If the federal court chooses the latter clearly established constitutional option, then it may become exceedingly difficult to make a legitimate case against Mohammad and his co-conspirators who will most certainly utilize the protections of the Federal Rules of Evidence and Federal Rules of Criminal Procedure to keep any torture-obtained evidence from being used against them.


Attorney General has expressed confidence that the Government has sufficient “independent” evidence (evidence unrelated to the torture procured evidence) to convict these “criminal terrorists.” The Attorney General may be right—and we certainly hope that he is—but it is highly unlikely that the international legal community and many segments of the American legal community will ever be able to free itself from the “torture images” invoked by dozens of water boarding incidents and other torture methods Mohammad and his co-conspirators were subjected to necessary to legitimize the “criminal” proceedings against them.


How do you possibly legitimize or even create the appearance of fairness in a federal civilian trial when the world knows that the defendants were tortured by the Government? We certainly do not have the answer to this question.


Perhaps this is why some policy makers have begun to seriously debate the issue of what some law professors and national security experts call a “national security court” system set up to exclusively deal with terrorism cases. This high controversial issue recently gained serious traction with Glenn Sulmasy’s new book, “The National Security Court System: A Natural Evolution of Justice In An Age of Terror.” Writing in a September 21, 2009 Findlaw column, attorney David Rittigers, a decorated former Army Special Forces officer, illustrated what he feels are the dangers of Sulmasy’s “national court” proposal:


“Sulmasy begins with a good summary of how military commissions have historically been prone to abuse. Andrew Jackson used military commissions to try American citizens in New Orleans after successfully repelling British forces in the War of 1812, imposing martial law on the city until a formal declaration of peace arrived. When a local civilian, Louis Louallier, criticized the decision in a local newspaper, Jackson ordered him arrested and tried before a military tribunal for ‘inciting mutiny and disaffection in the Army.’ When Louallier filed and received a petition of habeas corpus from a federal district judge, Jackson ordered the judge arrested as well. After Louallier acquittal, Jackson disregarded the verdict and kept him in jail until the end of the war. Jackson released the judge, but ‘asked’ him to remain outside the city limits until the war was officially over.”


As Rittigers pointed out, Sulmasy’s national terrorism court system indeed proposes some radical changes to our historical concepts of justice, including but not limited to the following:


  • Terrorism defendants would lose their right to a jury trial and be tried instead by a thee-judge federal panel.
  • Terrorism defendants would be detained, tried, and imprisoned on military bases.
  • If a terrorism defendant did not have the funds to retain his own counsel, military lawyers who have been determined not to be qualified to prosecute the case would be assigned to defend the suspect.
  • Terrorism defendants would not be able to invoke the exclusionary rule which bars the use of illegally obtained evidence.
  • Provide judges with extraordinary powers to close hearings and trials in these cases from public view.


These are constitutionally draconian proposals—certainly none of which we are prepared to accept. But trying terror suspects like Mohammad and his co-conspirators in federal civilian courts pose significant constitutional problems as well. Despite the concerns expressed by opponents of the decision to try these individuals as criminal terrorists, many federal district courts in this country will find it difficult to follow the exclusionary rule, or any of our traditional notions of due process of law, and force the release of these kinds of defendants because incriminating evidence against them was directly or even indirectly obtained by torture.


The end result? Federal civilian courts like the one in New York will have to hold their noses and countenance the use of at least some evidence obtained by torture. Historical rules of evidence and procedure will be so corrupted and compromised necessary to secure criminal convictions—and even death sentences—against these tortured criminal terrorists that our historical notions of justice and the constitutional guarantee to a fair and impartial trial will be irreparably undermined.

Thus, as a result of the CIA’s pursuit of the Bush administration’s “war on terror” with all its unlawful abuses (torture,


kidnappings, rendition, secret prisons, etc,), there now exists a real “threat” that the very system of justice that distinguishes this nation from all others in the world will be irrevocably damaged. Khalid Sheikh Mohammad, and his co-conspirators, not only brought down New York’s Twin Towers but now pose a very real “national security threat” to destroy the very foundation of our justice system.  This  case, which was so horribly mishandled by the Bush administration, has brought the proverbial constitutional chickens home to roost.


The only options currently available to the American justice system are to either try suspected terrorists like Khalid Sheikh Mohammad as criminal terrorists in federal civilian courts or as “unprivileged enemy belligerents” before military commissions. Neither is a good option—so much so that exploring the possibility of creating a “national court” to deal exclusively with these kinds terrorism cases deserves serious consideration. Like attorney Rittigers, we do not endorse the laundry list constitutional restrictions Sulmasy proposes, but we do believe the author’s concept of a separate “national court” system deserves debate before Congress. We fear that the constitutional damage cases like Khalid Sheikh Mohammad will do to our civilian court system and the inevitable civil and constitutional abuses military commissions produce warrant consideration of a judicial alternative, like a national court system for terrorism cases but one that is in keeping with our historical notions of justice and liberty.






By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair