President Obama’s supporters have attacked his decision to try 9/11 mastermind Khalid Sheikh Mohammed via the military commission process. Some of these criticisms have merit and are worthy of debate. But the argument that military commissions won’t be legitimate because members of the Armed Forces will serve as the judge and jury is patronizing, insulting, and demonstrably false.
According to critics, military commissions are unfair because there is no civilian participation. The implicit argument is that members of the military can’t be trusted to give accused terrorists an impartial trial. This claim is offensive and without merit.
We trust our soldiers to protect us from our enemies, preserve our freedom, and defend our interests abroad. We ask them to represent us in foreign lands and war zones, arm them with our most sophisticated and deadly weaponry, and honor them as our bravest and finest citizens. Surely we can trust them to be impartial in military tribunals.
Claiming that our service members won’t be as fair as civilians is a variation on a common criticism of our military personnel: that they aren’t as intelligent as the general population and didn’t have other options besides joining the military. John Kerry famously expressed this view when he told college students that they would get stuck in Iraq if they didn’t do well in school. Most Americans disagree.
Surely there are some members of the military who would be biased jurors in terrorism cases. But this is also true of civilians. In fact, civilians in New York would be hearing cases blocks away from the site of the World Trade Center and might be even more biased. And the military culture of careful adherence to orders could make military jurors better able to put aside their own beliefs and follow the letter of the law and instructions from the judge.
Finally, the hard evidence suggests that military trials don’t result in unfair or excessive sentences. According to Adam Serwer of the American Prospect, as of early 2011, only a handful of terrorists have been convicted via the military commission process and their sentences have been far from severe. Serwer reports that two of them are now free, one will serve eight years, one was sentenced to 14 years (though his sentence may be reduced), and one was sentenced to life in prison.
Granted, none of these men were accused of crimes as grave as those Khalid Sheikh Mohammed has proudly admitted to. But these results nonetheless suggest that military commissions won’t result in automatic convictions and sentences of long prison terms or the death penalty. Opponents of the Obama/Bush policy of military commissions can criticize the process all they want. But they shouldn’t be allowed to use the process as an excuse to criticize the military.
David Meyers served in the White House from 2006 to 2009, and later in the United States Senate. He is currently pursuing graduate studies at Columbia University.