Military Commissions Revived: Don’t Do It, Mr. President!

I was so delighted that the Defense Authorization Act,
signed into law by President Obama on Wednesday, included a hard-won concession
that the administration can transfer prisoners from Guantanamo to the mainland
to face trials (even though the legislation still bears the fingerprints
of interfering lawmakers, and still, scandalously, prevents any innocent man
from being rehoused in the country that falsely imprisoned him) that I overlooked
two other distressing facts.

Firstly, the Act authorizes 680 billion dollars to be spent – a mind-boggling
amount of money – and secondly, it includes amendments to the Military Commissions
Act of 2006, authorizing the revival of the much-maligned “terror trials”
that were first dragged from obscurity
by Dick Cheney and his close advisers in November 2001.

I have spent much of the last two years railing against the folly and injustice
of the Commissions, and, like human rights groups and lawyers, am not remotely
assured that the Commissions’ latest incarnation is either prudent or necessary.

Statements derived from torture – key to the initial proposals back in 2001
– are, apparently, long gone, supposedly removed from any dealings with “War
on Terror” prisoners in the Detainee Treatment Act of 2005. When the Commissions
were ruled illegal by the Supreme Court in June 2006 and revived by Congress
in the Military Commissions Act just a few months later, all forms of coercion
were supposed to have been outlawed, but in reality, the military judges were
allowed to use their discretion to decide where a line should be drawn.

In this latest incarnation of the “terror trials,” statements are
required to be “voluntary,” bringing the system much more in line
with federal court rules, although in reality a loophole still remains. Involuntary
statements – in other words, those derived through some form of coercion – will
be allowed if “the statement was made incident to lawful conduct during
military operations at the point of capture or during closely related active
combat engagement, and the interests of justice would best be served by admission
of the statement into evidence.”

The new legislation also tightens the rules on the admissibility of hearsay
evidence – or, as it should really be called, information obtained through hearsay.
Both the prosecution and the defense must now be allowed time to investigate
the information, and the military judges are empowered, like the federal court
judges
ruling on the Guantanamo prisoners’ habeas corpus petitions, to “take into
account all of the circumstances surrounding the taking of the statement, including
the degree to which the statement is corroborated, the indicia of reliability
within the statement itself, and whether the will of the declarant was overborne.”
They are also empowered to decide whether such statements are relevant and probative
of the facts, and to reach their own conclusions about whether “the general
purposes of the rules of evidence and the interests of justice will best be
served by admission of the statement into evidence.”

Protections have also been provided in capital cases, in which the defendants
– now, interestingly, identified as “unprivileged enemy belligerents,”
rather than the notorious “enemy combatants” of the Bush administration
– are entitled to be represented by defense lawyers with experience in handling
capital cases.

More troubling are three particular aspects of the new Commissions: the fact
that there is no lower age limit on those who can be charged (an omission which
may have been included specifically to target Omar Khadr,
the Canadian who was just 15 years old when he was seized in 2002); the fact
that, despite proposals made by the administration, the legislation has no “sunset
clause,” which means, as Daphne Eviatar explained in the Washington Independent,
“[al]though Obama has promised to use the commissions sparingly, the new
law sets up a parallel justice system that could outlive [his] administration
and leave an indelible stamp on its legacy”; and the fact that two dubious
war crimes – “conspiracy” and “providing material support for
terrorism” – are still included in the legislation.

This is perhaps unsurprising, as it was Congress that introduced “material
support for terrorism” in the Military Commissions Act, but its inclusion
in the new legislation flies in the face of warnings by senior Obama administration
officials that it might not withstand legal challenges. In testimony to the
Senate Armed Services Committee in July, Assistant Attorney General David Kris
urged lawmakers to drop “material support” from the pending legislation,
noting:

While this is a very important offense in our counterterrorism
prosecutions in Federal Court … there are serious questions as to whether
material support for terrorism or terrorist groups is a traditional violation
of the rules of war … our experts believe 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.

Kris was more enthusiastic about retaining the other charge used most frequently
in the Commissions – “conspiracy,” a legacy of Dick Cheney’s original
Commissions – but this, too, is fraught with problems. In Hamdan v. Rumsfeld,
the case in which the Supreme Court shut down the Commissions’ first incarnation,
Justice John Paul Stevens, in an opinion in which he was joined by three other
justices, made a point of mentioning that “conspiracy” has not traditionally
been considered a war crime, and Shayana Kadidal, senior managing attorney of
the Guantanamo Global Justice Initiative at the Center for Constitutional Rights,
told Daphne Eviatar that, as a result, lawyers may well be able to argue that
Congress has crafted an unconstitutional ex post facto law, in attempting to
justify war crimes charges after the crime in question was committed.

The irony, therefore, is that, although Obama’s Commissions have moved closer
to the standards required in federal court trials, the administration has found
itself unable to take the logical next step and scrap them completely, pursuing
cases in venues with a long history of successfully prosecuting terrorism cases,
where well-established rules are already in place to handle “conspiracy”
and “material support for terrorism.”

As Lawyers at Human Rights First have been explaining for many years – most
recently in an update to their report, “In Pursuit of Justice: Prosecuting
Terrorism Cases in the Federal Court”
– in the last 20 years, federal courts have handled approximately 135 real-life
terrorism prosecutions, and have secured convictions in over 90 percent of those
cases. When the updated report was issued in July, Elisa Massimino, Human Rights
First’s chief executive officer, explained, “Politicians have spent eight
years trying to reinvent the wheel when it comes to prosecuting terrorism and
that approach has failed miserably. This report makes clear that the best way
forward is to rely on our existing legal system. Its track record of successfully
prosecuting criminals, safeguarding national security, and addressing the complex
legal issues of our time is unmatched.”

What is particularly sad about the Obama administration’s decision to cling
onto the Commissions is that, elsewhere, senior officials have recognized the
power of traditional courts. Ahmed Khalfan Ghailani, a “high-value detainee”
at Guantanamo, who spent nearly two years in secret CIA prisons, was actually
indicted for his alleged involvement in the 1998 African Embassy bombings before
the Bush administration began its destructive “War on Terror,” and
when he was moved to the US mainland
to face a federal court trial in May this year, the Justice Department issued
a press release
explaining that it has “a long history of … successfully prosecuting
terror suspects through the criminal justice system,” and, to prove it,
attached a list of successful prosecutions
over the last 16 years.

If Ghailani can be successfully prosecuted in federal court, there is surely
no valid reason why a two-tier judicial system is required, especially given
the ongoing problems with the Commissions identified above, and I can only conclude
that the administration is unwilling to take this route because officials are
not satisfied with the federal courts’ 90 percent success rate in terrorist
cases, and fear that, in some cases, trials might lead to acquittals.

This is actually how justice works – and how it should work – but as a result
of the Bush administration’s “War on Terror,” it seems that fear has
eroded reason to an unprecedented extent, and that acquittals are as unacceptable
as the alleged recidivism
of even a single prisoner released from Guantanamo.

With this in mind, senior officials would do well to recall that one of the
reasons that Col. Morris Davis, the former chief prosecutor of the Commissions,
resigned in October 2007 was the following exchange
with William J. Haynes II, the Pentagon’s chief counsel, which took place in
August 2005.

According to Col. Davis, Haynes “said these trials will be the Nuremberg
of our time ” – a reference to the 1945 trials of Nazi leaders, “considered
the model of procedural rights in the prosecution of war crimes,” as an
article in the Nation described
them. Colonel Davis replied that he had noted that there had been some acquittals
at Nuremberg, which had “lent great credibility to the proceedings,”
and added, “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. At which point, his 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.'”