President Obama's announcement Friday that he was going to resume military commission trials comes as a real disappointment to those who believe that conforming the fight against terror with the rule of law is the right thing to do not only from a legal perspective, but from a pragmatic one as well. The fight against al Qaeda is much more than a military struggle; it is as also an international criminal law enforcement effort requiring a great deal of international cooperation, as well as a political and pyschological contest in which we must persuade the substantial majority of the Muslim world that we are in the right and terrorism is the ultimate wrong. Resuming the military commissions, suffering from both real legal shortcomings and substantial adverse publicity, seems counter to our national interest.
The President's statement refered to the "long tradition" of American military commission use. As one who has spent the better part of the years since 2001 documenting military commission history and assessing applicable governing law -- both international and domestic -- I'm led to conclude that the revisions the President proposed are wholly insufficient to redress the commissions' legal shortcomings, let alone overcome the public taint fully merited by their flawed implementation during the previous administration.
The Guantanamo commissions have suffered from critical substantive and procedural defects since their inception. To be fair, as I have documented here, commission procedure has been significantly improved over the past few years. Despite its many faults, the Military Commissions Act of 2006 made a substantial contribution in this respect. Nevertheless, the commissions as inherited by the Obama administration retained a number of significant procedural flaws, including
(1) limitations on discovery that impair defense access to key evidence, including potentially exculpatory information held by the government
(2) real potential for convictions based on information obtained via coercion or even torture
(3) inability of defendants to be represented by counsel of choice
(4) inequality of arms between prosecution and defense in terms of access to witnesses and resources available to counsel
President Obama is directing some some modest changes such as banning evidence obtained through cruel, inhuman, and degrading treatment and requiring the proponent of hearsay evidence to demonstrate its reliability. These are steps forward, but in an adversarial system effective judicial gatekeeping still requires the defense to have sufficient knowledge of evidentiary sources to argue why the judge should exclude tainted evidence, and nothing in the new proposals seems to sufficiently address the information and resource disparities between prosecution and defense, still leaving military commission defense counsel shortchanged over their access to evidence as compared to court-martial attorneys. The President adopts the court-martial rule allowing defendants to request specific military counsel. That right might mean something to an active duty servicemember who has had the opportunity to make the acquaintance of multiple JAGs over the course of their military service or learn of their reputations; it's not very meaningfull to foreign citizens isolated at Guantanamo whose real desire is to be able to call upon attorneys they can trust from their homeland -- a privilege accorded by virtually every previous war crime tribunal when the trying nation was not actually still in a shooting war with the defendant's home state. The President's proposed changes rdo epresent another small evolutionary step forward in commission procedure, but still fall well short of the standards necessary to produce credible trials.
The commissions also have raised substantial equal protection concerns which the new changes do nothing to address. The most obvious example is that the tribunals are limited to trying non-citizens only, implying upfront that this is too low a standard of justice to be imposed upon an American. But of equal concern, the rights and privileges accorded the defendants have varied considerably according to the relationship of the defendants' home country with the United States. Britain got its citizens exempted. Australia negotiated very special considerations for David Hicks including assistance by national counsel even though not permitted by the commission rules and uniformly denied to those from Muslim countries to date. This inequality is evident to even casual foreign observers, and will likely preclude convictions from receiving broad public acceptance.
But the most fundamental flaw in the whole commission process is the lack of conformance with any credible body of substantive law. The commissions are ultimately justified through reference to the law of war, but there has been no serious effort to conform to the rules of that body of law. The most obvious example is that essentially all charges brought to date are legally problematic. Virtually all serious legal scholars who have examined the issue, as well as four Supreme Court justices, are on record as agreeing that conspiracy is not a war crime, yet that has been one of the principle charges levied against Guantanamo defendants. Providing material support to terrorism is another example of a charge clearly prosecutable in U.S. federal courts but lacking standing as a law of war offense. The government seeks to deny the defendants any combatant standing, but the law of war provides individual criminal liability fundamentally for combatants because international law immunizes them from domestic criminal prosecution for their martial acts of violence. If members of al Qaeda lack combatant standing, they are logically to be tried in domestic courts because the law of war does not criminalize their participation in hostilities but rather fails to immunize it.
The irony is that the assumed advantage of the military commissions is that they can render swifter justice than regular federal trials and can deliver convictions where Article III courts cannot. But if those convictions are the result of procedural shortcuts or based on tainted evidence then the verdicts and any punishment imposed will be irreparably tainted, providing a propaganda advantage to our adversaries and further impairing legal cooperation with our friends. And federal law clearly provides the robust slate of proven offenses necessary to bring virtually all those associated with al Qaeda within its ambit. Military commission convictions, by contrast, will result in years of appeals on basic issues related to their jurisdiction over the substantive offenses charged which would not be an issue subject to challenge in federal courts.
The military commissions were a bad idea under the Bush Administration. They remain a bad idea now.
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