On Monday, following a request from the Obama administration, Army Col. Stephen Henley, the military judge in the proposed trial by military commission of five men charged in connection with the 9/11 attacks – Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, Mustafa al-Hawsawi, and Walid bin Attash – agreed to the government’s proposal for a 60-day stay in the proceedings, to give the administration more time to decide what it wants to do next.
The military commissions, established by former vice president Dick Cheney in November 2001 and revived by Congress in 2006, after the Supreme Court ruled them illegal, were frozen for four months by President Obama on his first day in office, and then frozen again four months later. The request for this third delay – apparently just for two months this time, until Nov. 16 – cannot disguise the fact that Congress is struggling to establish new rules for the commissions in an attempt to iron out problems with the much-criticized trial system, and that the administration is struggling with a decision about whether to proceed with the commissions, or to put prisoners forward for trials in federal courts instead (as happened in June with a solitary "high-value detainee," Ahmed Khalfan Ghailani, whose trial in New York is scheduled to begin in September 2010).
Last week, the government was spurred to action by lawyers for Ramzi bin al-Shibh, whose mental competence to stand trial has been disputed by his lawyers since pre-trial hearings began last year. In what Carol Rosenberg of the Miami Herald described as "a 71-page broadside against the war court created by the Bush administration," bin al-Shibh’s lawyers described the court as "not a legitimate judicial proceeding but a political show trial" [.pdf], prompting a 30-page response from the Justice Department, in which Assistant Attorney General David Kris argued that the lawyers’ claim of "constitutional defects in the Military Commissions Act are without merit" [.pdf].
Despite the fact that Kris had been put forward to prevent the planned resumption of pretrial hearings at Guantánamo this week, while government lawyers continue their deliberations regarding the commissions’ future (and partly, I suspect, because the last two outings were so disastrous), he appeared, in summer, to deal a major blow to the continuing rationale for the commissions. In congressional testimony [.pdf], he conceded that one of the mainstays of the charges in the commissions – providing material support for terrorism – should be dropped because there was a "significant risk" that, on appeal, judges would not regard it as a legitimate war crime.
Critics were quick to remark that this appeared to rule out two of the commissions’ only three verdicts – in the cases of David Hicks and Salim Hamdan, who were both convicted solely on the basis that they provided material support for terrorism – but while these arguments continue behind the scenes (and lawyers for the third man, Ali Hamzi al-Bahlul, appeal his conviction and life sentence last November, in a trial in which he refused to mount a defense), Kris told the court only that the government was seeking a 60-day delay in the 9/11 cases because "a decision might be made to prosecute [bin al-Shibh] in federal court."
For the purposes of justice, it must be said, these developments are good news. Scarcely in its history has the United States entertained such a shabby and shamelessly politicized travesty of justice as the military commissions, which stumbled from one embarrassment to another in their long and almost entirely unproductive history during the Bush years.
Moreover, although President Obama has managed to secure some support from within his administration – and within the Senate – for his ghoulish proposal to bring the commissions back from the dead for a second time, the House of Representatives has, to date, refused to endorse the changes to the Military Commissions Act that have already been approved by the Senate, and, as Carol Rosenberg explained, "has given no indication when or if it will take up the matter."
This is another good sign, because, although the proposed changes, which include a ban on the use of evidence obtained through coercion and restrictions on the use of hearsay as evidence, convinced the politicians in Congress (largely the same people who passed the hideously flawed Military Commissions Act back in 2006, which introduced "material support for terrorism" as a war crime in the first place), experts with a far greater understanding of the inherent problems of the system queued up over the summer to tell various Senate and House Committees why the proposals were a bad idea, and also why they were doomed to fail.
I wrote at the time about the testimony of Adm. John Hutson, about the testimony of Lt. Col. Darrel Vandeveld (the prosecutor who resigned after seeing firsthand how the commissions were incapable of delivering justice), and about the testimony of Maj. David Frakt, a military defense attorney in the commissions, who reminded a House Committee of the trial system’s fatally flawed origins, and who spelled out, with unassailable clarity, why federal courts are more adequately equipped than the military to handle the limited number of genuine terrorism cases at Guantánamo.
These were not the only critics. Others included Denny LeBoeuf, director of the ACLU’s John Adams Project, who provided a detailed analysis of the commissions’ failings based on her observations of the pretrial hearings in the 9/11 trial, and on a forensic dissection of the weaknesses in the Senate Committee’s legislation [.pdf], and in a recent article on the release from Guantánamo of Mohammed Jawad, I included excerpts from the testimony of Col. Peter Masciola, the commissions’ chief defense counsel. Col. Masciola explained how the commissions’ convening authority – a post still held by Susan Crawford, a close friend of both Dick Cheney and his right-hand man, David Addington – is an "untenable and inherently conflicted role." As he described it, drawing from bitter experience, without a radical review of the convening authority’s role, which is not addressed in the Senate bill aimed at reviving the commissions, it will remain a job for a political appointee with prosecutorial functions, who is also responsible for providing – or, as Col. Masciola demonstrated, mostly refusing to provide – the defense teams with any of the resources needed to do their job.
Recently, I also came across another damning document confirming the unsuitability of military commissions for cases related to terrorism. Just three weeks ago, the National Institute of Military Justice (a non-profit organization established in 1991 to advance the fair administration of military justice and foster improved public understanding of the military justice system) produced a report, "NIMJ Reports From Guantánamo" [.pdf], in which a number of observers reported on their visits to commission hearings between October 2008 and January 2009.
Two accounts were particularly noteworthy. In the first, Jonathan E. Tracy, NIMJ’s assistant director (and a former member of the Army Judge Advocate General’s Corps) noted that, "while the lawyers and judges all operated professionally and seemed eminently qualified, there is no escaping the fact that the commissions are ad hoc proceedings with little or no legal precedent on either substantive or procedural issues," and that "the system contains several inherent flaws that make for lopsided justice, no matter how qualified the defense counsel."
Tracy observed proceedings in the cases of Omar Khadr (the Canadian who was just 15 years old when he was seized) and Mohammed Kamin (at best, a minor Afghan insurgent), and he was appalled, in particular, by what he perceived as the persistent refusal of prosecutors to provide discovery to the defense "in a timely manner " – if at all. After also revealing his dismay that questions about Kamin’s mental competency were subjected to an "inadequate investigation," he concluded, "It was very apparent that the defense counsel in both cases face a daunting challenge getting access to evidence to which they are entitled. The tactics used by the government and their cavalier dismissal of charges of unfairness damage the credibility of the commissions."
In the second account, Diane Marie Amann, a law professor and former assistant federal public defender, reported on her observation of pretrial hearings in the cases of the 9/11 co-defendants in December 2008, and was shocked to note that, when it came to questions of self-representation, "not even the participants who are members of the bar were fully cognizant of the rules that governed the proceedings." She also noted that, because the case involved difficulties raised by the use of "waterboarding or other harsh methods of interrogation," the trial would "benefit from the certainty of precedent. Yet precedent is something utterly lacking in the military commissions."
After also noting complaints from the prisoners regarding the poor quality of the interpreters (which she compared unfavorably to her recollections of interpreters in federal court), Amann concluded that nothing she had seen eased "the core concern" that had troubled her for several years: "specifically, that the post-9/11 military commissions are unlikely to afford fair trials to the defendants who appear before them."
So bring on federal court trials, please – in which "material support for terrorism" is a genuine crime, as opposed to an invented war crime – and let’s give the commissions the burial they deserve, in a grave marked, "Cheney’s Wretched Dreams." As Reuters explained on Monday, Navy Capt. John Murphy, the commissions’ chief prosecutor, told journalists at Guantánamo on Sunday that "federal prosecutors in New York, Washington and Virginia are vying to try the accused plotters of the September 11 attacks if their cases are moved into U.S. civilian courts."
Adding that the courts in question are Washington, the Southern and Eastern Districts of New York, and the Eastern District of Virginia, Capt. Murphy also explained, "They are working with us in a joint review of these cases and it is our collaboration that will ultimately make its way in written reports that go up to the attorney general and the secretary of defense to make a decision." He also said that he "still hopes" to try 65 of the remaining prisoners in trials by military commission, but conceded that some of the 65 had "already been indicted in U.S. federal courts," although he "would not say how many."
After four years of research into the stories of the Guantánamo prisoners, I have profound doubts that viable cases can be established against as many as 65 prisoners – unless the administration is really determined to pursue Taliban foot soldiers in the courts, rather than al-Qaeda terrorists – but it was refreshing to hear that Capt. Murphy was talking so openly about the possibility of federal court trials.
As Maj. David Frakt explained in the one-man demolition job that he conducted on the commissions during his testimony to a House Committee in July, "Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in federal court. As the recent report by Human Rights First conclusively demonstrates [.pdf], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases."
More crucially, as Maj. Frakt also explained:
"The reason that the military commissions failed – indeed, the primary mistake of the entire ‘War on Terror’ – was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves."
Note: For more NIMJ documents relating to the commissions, visit the Web site here.