In a major national security speech on May 21, President Obama demonstrated an unnerving ability to keep too many options on the table by proposing five possible courses of action for the prisoners at Guantánamo: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions (the "terror trials" introduced by former Vice President Dick Cheney in November 2001), and indefinite detention. As I mentioned in an article last week, "At the time, civil liberties groups, lawyers and numerous commentators — myself included — responded with undisguised hostility towards the last two options."
This hostility to proposals to resuscitate the Military Commissions and to seek approval for plans to legitimize indefinite detention was not assuaged on Tuesday when the Senate Armed Services Committee heard testimony on "legal issues regarding military commissions and the trial of detainees for violations of the law of war" from Jeh Johnson, the Defense Department’s General Counsel (PDF), and David Kris, the Assistant Attorney General in the Justice Department’s National Security Division (PDF). Both men gave Committee members detailed and considered opinions about how to amend the Commissions in an attempt to ensure, as the President stated in May, that the administration would "work with Congress and legal authorities across the political spectrum on legislation" relating to the Commissions, so that they would be "fair, legitimate, and effective."
These opinions focused on five particular amendments, which, as Kris described them, were rule changes which "prohibited the admission of statements obtained through cruel, inhuman or degrading treatment; provided detainees greater latitude in the choice of counsel; afforded basic protections for those defendants who refuse to testify; reformed the use of hearsay by putting the burden on the party trying to use the statement; and made clear that military judges may determine their own jurisdiction."
However, both men ignored a fundamental problem with the entire proposal; namely, that using Military Commissions instead of federal courts perpetuates the Bush administration’s ludicrous assertion that "terror suspects" seized in the "War on Terror" were "unlawful enemy combatants," rather than prisoners of war or criminal suspects. In addition, grave concerns over the administration’s adherence to the Bush administration’s central policy of creating a new category of prisoner outside existing laws were not dealt with simply "discontinu[ing] the use of the phrase ‘unlawful enemy combatant,’" as Jeh Johnson stated on Tuesday.
In his testimony, Johnson hinted at the government’s confusion. "Military commissions should be a viable, ready alternative for national security reasons for those who violate the laws of war,’" he said, but added, as Carol Rosenberg described it in the Miami Herald, "it is the administration view that when you direct violence on innocent civilians in the continental United States, it may be appropriate that that person be brought to justice in a civilian public forum in the continental United States." He then said that federal courts — Title 18 courts — "appear to be the first preference," because "the act of violence that was brought against civilians was a violation of Title 18 as well as an act of war.’"
With this comment, it appears to me that Johnson captured the essence of the administration’s post-Bush confusion, regarding the genuine terror suspects in Guantánamo as both criminals and warriors, when they should, instead, be regarded simply as criminals. It led to bizarre efforts by both Johnson and Kris to assure the Committee that providing the accused with greater safeguards on the gathering of evidence would not mean, as Johnson put it, that "soldiers on a battlefield should be required or even encouraged to provide Miranda-like warnings to those they capture" (in other words, the right not to provide self-incriminating statements), even though these issues should not arise at all. Before the Bush administration decided that there was a third category of prisoner, soldiers in wartime were held as prisoners of war until the end of hostilities, and were protected by the Geneva Conventions, and terrorists were criminal suspects, to be put forward for federal court trials.
This was not the only sign of a deep confusion at the heart of the Obama administration. As Carol Rosenberg described it, Jeh Johnson also touched on the administration’s apparent enthusiasm for "preventive detention," when he "adopted a Bush administration view that a Guantánamo detainee could be acquitted of a crime by a jury but still held indefinitely by the U.S. military on grounds he would be dangerous if set free." This was always one of the Bush administration’s most intolerable betrayals of the very principles of justice, and was no less chilling when delivered by one of Barack Obama’s most senior lawyers.
Fortunately, Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the U.S. Navy from 1973 to 2000, and was the Navy’s Judge Advocate General from 1997 to 2000, was on hand to cut through the administration’s fog, to put forward a stout defense of the abilities of the federal courts, and to deliver a withering dismissal of proposals to revive the Military Commissions (PDF).
Hutson said that although he was an "early and ardent supporter of military commissions," the process created by the Bush administration "did not live up to the traditions" of the Uniform Code of Military Justice (the military’s own judicial system), and had become a "significant distraction for the military," because "[p]reserving and ensuring justice in the United States is the primary mission of the Department of Justice, not the Department of Defense." In a detailed analysis of the federal courts’ abilities to try terror suspects — and of how the DoD does not have a track record of conducting "terror trials," and has been tarnished by its association with the Commissions over the last seven years — he said,
Besides being a distraction to the vital mission of the DoD, military commissions have, to a large extent, become a discredit in spite of the valiant and highly credible efforts of many, many people in uniform. Rather than showcasing the military justice system of which we are all justifiably proud, commissions represent something else entirely. They have not worked often or well. "Fixing" them would help, but won’t eliminate undeserved but inevitable criticism.
On the other hand, during the same period, U.S. District Courts have successfully prosecuted literally hundreds of terrorists who now reside in Federal prisons around the country, keeping all Americans safer. Federal courts, including judges, prosecutors, marshals, and other court personnel have decades of experience in these cases. They have developed a justifiable and universally held reputation for fairness, and consequently, they are largely immune to criticism.
There is also now a large body of law that has been developed over the years in the Federal court system. It would take an equal number of cases and decades of trials for DoD to match the Federal precedent contained in the Federal Reporters.
Moreover, he added, "It is not only unnecessary, it is inappropriate for DoD to operate a system of justice in parallel to DoJ. The UCMJ and the courts-martial it creates are absolutely necessary to ensure our effective fighting force. But … we should resist the temptation of using the military to prosecute foreign criminals when DoJ can perform that critical function quite well." He also explained, "We don’t ask DoJ to fight wars. We shouldn’t ask DoD to prosecute terrorists."
In one of the most critical passages, Admiral Hutson highlighted the confusion inherited by the Obama administration from its predecessor, regarding the status of the genuine terror suspects in Guantánamo. "Let us not forget," he said, "these are not legitimate warfighters. They are thugs, cowards who target innocent civilians. We should treat them as such and not elevate their status to that of legitimate enemies."
In what was perhaps the most critical passage, however, he pointed out that using Commissions instead of federal court trials appeared to demonstrate only that the government was afraid that some federal court trials would fail, and was therefore seeking a forum that eliminated the possibility of acquittals. "If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point," he said. "You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade."
He added, "The corollary to that is that you can’t have a real court if the evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government’s case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution."
These were extremely significant comments, as anyone who has studied the history of the "War on Terror" Commissions knows only too well. Military defense attorneys, assigned to represent prisoners in the Commissions, realized early on that the system was designed solely to secure convictions, and this realization was the basis for their unanimous opposition to the Commissions’ very existence. As Lt. Cmdr. Charles Swift, who represented Salim Hamdan, one of Osama bin Laden’s drivers, explained in 2007, "The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively — what some people call torture. Guantánamo and the military commissions are implements for breaking the law."
In addition, in October 2007, when Col. Morris Davis, the Commissions’ chief prosecutor, resigned, he stated, in subsequent statements, that he had done so not only because of the politicization of the process (which I wrote about in an article last October, "The Dark Heart of the Guantánamo Trials") and the administration’s insistence on using information derived from the use of torture (despite his implacable opposition), but also because, in a discussion in August 2005 with Jeh Johnson’s predecessor, William J. Haynes II (one of the most significant figures in the development of the Bush administration’s torture policies), the following exchange had taken place (as he explained to the Nation):
"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’"
The rest of Admiral Hutson’s testimony was devoted to expanding on his explanation of why federal courts are the only viable forum for "terror trials," and involved him not only dismissing as "a red herring" the notion that soldiers would have to give Miranda warnings to those captured on the battlefield, but also pointing out that if the government revised the Commissions to a sufficiently high standard, "then we have essentially duplicated our own Federal courts":
Over the years, federal courts have displayed remarkable ingenuity, flexibility, and resourcefulness in prosecuting terrorists. The Federal Rules of Evidence and Procedure are sufficiently adaptable to accommodate the vagaries of trying those individuals who are captured overseas by military personnel in the midst of performing military operations. I believe the image of the "strategic colonel" having to give Miranda warnings after risking his life to break into the bunker is a red herring.
If you as members of this Committee believe or suspect that the Federal Rule of Evidence or the Federal Rules of Criminal Procedure should be amended to accommodate certain cases and situations, it is preferable to superimpose modest new rules on an extant, tried and true judicial system than to create a whole new system — particularly in light of recent efforts.
[I]f we create yet another military commission system that "contains all the judicial guarantees considered to be indispensable by all civilized peoples" as required by Common Article 3 of the Geneva Conventions, then we have essentially duplicated our own Federal courts. There is no logical reason to create a system that mirrors one already in existence and is functioning so well. We should strive for the minimum change necessary to accomplish the purpose, not a wholesale change to an already effectively functioning system.
Clearly and undeniably, the Administration and this Committee are dedicated to untying this Gordian knot in a way that serves the very best interest of the country. We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal it rather than improve it. In the process, I urge you to express this body’s preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.
My hope, of course, is that senior officials in the Obama administration and the members of the Senate Armed Services Committee not only digest Admiral Hutson’s words of wisdom, but also shape their still amorphous policies based on his advice. The alternative — a legal quagmire that lacks legitimacy and maintains key policies of the Bush administration’s "War on Terror," including trials designed to prevent acquittals, and claims that prisoners can continue to be held even if acquitted after a trial — is, genuinely, almost too awful to contemplate.