For anyone who has studied Guantánamo’s military commissions closely over the last eight years, it was obvious that their revival last week, in a supposedly new and improved form, was bound to be a disaster.
First dragged out of obscurity in November 2001 by Dick Cheney and his close advisers, specifically to secure the convictions of “terror suspects” in a system designed to allow evidence obtained through the use of torture, the commissions failed twice before their recent reincarnation. In June 2006, the Supreme Court ruled that they violated both the Geneva Conventions and the Uniform Code of Military Justice, and when they were revived by Congress later that year (with torture banned, but coerced evidence allowed at the discretion of the judges), they then stumbled from one disaster to another from March 2007 until January 2009, when President Obama suspended them.
Throughout that time, they secured only three contentious results, and were publicly undermined by their own military defense attorneys. On two other occasions, they were rocked even more fundamentally: In October 2007, when the chief prosecutor, Col. Morris Davis, resigned, complaining that the entire process was subjected to political interference, and in September 2008 when another prosecutor, Lt. Col. Darrel Vandeveld, resigned because he discovered that the system was incapable of delivering justice.
President Obama’s freeze on proceedings on his first day in office should have been the end of the story, and he should have had the courage to realize that federal courts – with their long and successful history of prosecuting cases related to terrorism – were the only valid venues for trials. Instead, he turned his back on his own pledges on the campaign trail, and his opposition to the Military Commissions Act as a senator in 2006, and, with the support of Congress, tinkered once more with the commissions’ rules, tightening the restrictions on the use of hearsay and coerced evidence, but neglecting to introduce either a lower age limit for those who can be charged or a sunset clause in case it all went horribly wrong.
Last week, when the new rules were tested on Ibrahim al-Qosi, a Sudanese prisoner who was first charged in February 2004, was charged again in February 2008 and is one of the first five prisoners charged by the Obama administration, the hearing began in chaos and confusion, and never recovered. In a demonstration of the kind of lack of attention to detail for which the Bush administration was notorious, and which left the military judges fumbling for answers, the judge, Air Force Lt. Col. Nancy Paul, was immediately confronted by a fundamental problem that, bizarrely, no one appeared to have seen on the horizon.
Under the Bush administration, for prisoners to be eligible to face trials by military commission, they had to have been subjected to a Combatant Status Review Tribunal, and to have been designated as an “unlawful enemy combatant.” Under the Mk. 3 Commissions, however, they are referred to as “alien unprivileged enemy belligerents.” The Washington Post explained that this description was “more in line with the Geneva Conventions,” according to military prosecutors, but no one had thought to inquire whether the change would be acceptable to the judge, and although Lieutenant Colonel Paul did accept it, noting that it was “specifically authorized under the MCA of 2009,” she was in no mood to do so without allowing a challenge from al-Qosi’s defense team.
In a “Motion For Article 5 Status Determination, Or, Alternatively, Dismissal For Lack Of Personal Jurisdiction,” the defense argued, firstly, that “the only competent authority to make such a determination is an Article 5 hearing, applying the procedures set forth in Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees.” This was a long shot, as Article 5 tribunals, established under the Geneva Conventions to ascertain, close to the time and place of capture, whether nonuniformed personnel are combatants or not, were abandoned in the “war on terror” by Donald Rumsfeld’s Defense Department. This was in spite of the fact that they had been successfully used by the US military in every conflict from Vietnam onwards, and, during the first Gulf War, had led to the release of 886 out of 1,196 men detained (at Guantánamo, in contrast, the lack of Article 5 tribunals meant that large numbers of innocent men ended up at in the prison alongside foot soldiers for the Taliban and a handful of terrorists).
Lieutenant Colonel Paul refused to accept this proposition, pointing out that AR 190-8 “is not determinative of jurisdiction in a Military Commission.” She did, however, accept the second part of the motion, noting that “a pre-trial finding by a military judge by a preponderance of the evidence that the Accused is an alien unprivileged enemy belligerent does not eliminate the requirement for the Commission members to find beyond reasonable doubt the Accused’s status if an element of the offense,” and set a date of January 6, 2010, for a hearing regarding the designation. According to the Washington Post, a military prosecutor explained that he “feared it could become a ‘mini-trial’ in itself, adding to the government’s burden in that case and others.”
After this terrible start, the government had no more luck when it came to the charges against al-Qosi. In his charge sheet in February 2008, al-Qosi was accused of “conspiracy” and of “providing material support for terrorism,” primarily based on allegations that, from 1996 to 2001, he was a bodyguard and driver for Osama bin Laden. However, as Devon Chaffee, an observer of the proceedings for Human Rights First, explained, “Under the new law the defendant no longer has to have had any connection to hostilities against the US to fall within the jurisdiction of the commissions.” As a result, the government filed a “Motion to Amend Charges,” asking to “[e]xpand the time frame” for the charges “from 1996 to 1992, which would include the time that al-Qosi spent with bin Laden in Sudan, before his departure for Afghanistan in 1996, and, allegedly, combat that he undertook in Chechnya in 1995, “after bin Laden financed his trip there.”
Again, Lieutenant Colonel Paul was unimpressed, noting that, although the rules regarding proposed changes in the new Military Commissions Act appeared to provide no guidance on this point, the relevant passages in the 2006 Act, which were drawn substantially from passages in the US military’s Rules for Court-Martial, were clear that the government’s request constituted a “major change” to the charges, and that “major changes may not be made over the objection of the accused unless the charges are withdrawn and re-referred.”
She added that the proposed amendments were “troubling in nature as the four-year extension of time and addition of overt acts dramatically changes the nature of the offense alleged,” noting that the request disrupted trial preparation which “has been ongoing for almost 2 years,” and, in conclusion, denied the request because the changes “are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred,” and, additionally, because they bring “unfair surprise to the Accused.” In the courtroom, as Devon Chaffee explained, Lieutenant Colonel Paul made a point of adding that, five years after the government first filed charges against al-Qosi, the defense still “doesn’t even know what the charges are going to look like.”
As the government decides whether to start all over again in al-Qosi’s case, two other issues are worth considering. The first, as I explained in an article last month, is that, at al-Qosi’s arraignment in 2008:
[H]is civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by military commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.
The second is that the other charge against al-Qosi – that he provided “material support for terrorism” – may not stand up to an appeal, even if he is convicted of material support in a forthcoming trial by military commission. To its credit, the Obama administration recognized this in summer, and proposed to Congress that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded, in Congressional testimony in July, that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.” The Justice Department’s position was echoed by the Pentagon, where General Counsel Jeh Johnson also accepted in July that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”
The irony, as the new military commissions began to unravel on their first outing, is not only that David Kris and Jeh Johnson failed to persuade Congress to drop the charge of material support for terrorism, but also that Congress ignored Kris’ additional suggestion that “material support charges could be pursued in federal courts where feasible.”
When Kris’ boss, Attorney General Eric Holder, announced last month that five prisoners – including al-Qosi – would face trials by military commission, no one piped up to ask why these men would be charged with material support, despite the opposition of both the Justice Department and the Defense Department to its incorporation in the revised military commissions Act. The administration will, I suppose, be able to blame Congress if the system collapses, but it would surely have made more sense for senior officials to follow the advice of their own lawyers, and to pursue these cases in federal court, along with those of Khalid Sheikh Mohammed and the other four men accused of involvement in the 9/11 attacks.