It's not every day that you get singled out for criticism in a law review article by a former U.S. Attorney General, but it's happened to me! I noticed that Alberto Gonzales has published "Waging War Within the Constitution" in 42 Texas Tech Law Review 843 (2010). In this article, Gonzales writes:
Those who criticize the decision to try Reid in our criminal courts instead of a military commission fail also to appreciate that, in reality, the United States did not have this option because Reid is a British citizen. [FN] After hostilities began in Afghanistan, the United States captured several British citizens fighting against coalition forces. The British Attorney General expressed concerns to me directly and other Administration lawyers about prosecuting British citizens in U.S. military commissions. Over the course of negotiations lasting several months, lawyers in the Bush Administration discussed various changes to the military commission procedures to accommodate the concerns of the British as to how the British detainees, if prosecuted, could be assured of fair trials that met international standards. Ultimately, that effort was unsuccessful, and President Bush agreed to the Prime Minister's direct request that the British detainees be transferred to the custody of the British authorities. Since Reid was also a British citizen, I am quite confident that if the United States had, in 2002, elected to try him in a military commission, the British government would have raised similar objections and requested his transfer to Great Britain. Given the long history of cooperation between the United States and Great Britain, and the deep respect between the President and the Prime Minister, I feel confident that such a request would have been honored. Therefore, Reid would only be brought to justice in one of two ways: either in Great Britain or in the American criminal justice system.
That [FN] that I've indicated? The only source cited was an article of mine, in which I suggested a framework for determining when captured combatants should be treated as criminal defendants versus as military detainees.
Now, on one level, Gonzales's reputation, particularly among academics, seems sufficiently low that being criticized by him is itself a badge of honor. However, I thought I would actually engage the substantive point that he makes, which is essentially legal realism. Gonzales's point is that we could not prosecute shoe bomber Richard Reid in a military court because the British would not have stood for it, and we needed British support for our operations in Afghanistan (as well as the upcoming adventure in Iraq).
But this is not a legal policy determination. That is, given a similar shoe bomber from, say, Yemen, it does not seem as if Gonzales is saying that said hypothetical terrorist would also merit a criminal trial in a civilian court. Rather, it's entirely a question of whether suspects are citizens of powerful, allied nations. That may be expediency, but it's hard to see it as justice.
Of course, I don't mean to sound like a pie-in-the-sky deontologist. One can always play with "ticking time bomb" scenarios that force acceptance of some unlawful act, and there's certainly nothing illegal about giving Reid a criminal trial. But those were not the only options available to the Bush Administration. If the Bush Administration failed to persuade the British that the military commission rules were fair, why not modify them to conform as much as possible to Article III procedures? The answer might be that, well, we don't want to give those procedures to military detainees from other nations . . . but note that "other nations" include our good friends, the Australians (David Hicks, the first person convicted, via guilty plea, in a military commission is an Australian) and Canadians (Omar Khadr, the teenage detainee accused of murdering U.S. soldiers, is Canadian). It seems awfully strange to dispense justice in such a haphazard manner, even if one understands the legal realism point.