Justice “Lite”: What Everyone Should Know about the Military Commissions

May 22, 2013

    IN RESPONSE to a question about the expanding hunger strike by detainees in Guantanamo, President Obama asked the country to reflect with him: “Why are we doing this?” With an implicit dig to the military commissions process instituted by his predecessor, George W. Bush, he noted that many terror suspects had been tried and sentenced to maximum security prisons in the United States, and that in so doing, justice had been served consistent with the Constitution and the rule of law. By contrast, he acknowledged, the problem at Guantanamo was getting worse.           

    In The Terror Courts: Rough Justice at Guantanamo Bay, Wall Street Journal reporter Jess Bravin tells a fast-paced, highly readable history of the military commissions experiment as conceived by the Bush administration and continued into the Obama administration. This book expertly details the myriad ways in which using military commissions to prosecute suspects accused of terrorism has been a very bad idea.

    The military commissions that were instituted after the terror attacks of September 11, 2001, were born out of a panicked reaction to a horrific challenge to our collective sense of security. Bravin charts the ways the commissions failed to provide the swift justice that was hoped for. Known rules of criminal procedure were set aside and the uncharted territory provided unending appeals and confusion. The commissions were staffed with JAGs (members of the Judge Advocate General’s Corps) and other military personnel unfamiliar with complex issues surrounding death penalty cases and the use of classified information, issues long familiar to criminal attorneys in federal court. The commissions did not enhance national security, in part because the fate of the suspects was subject to the complete discretion of the president, resulting at times in the release of high-level terror suspects for political reasons. The commissions have profoundly damaged the United States’ reputation as a beacon of individual rights. And at the same time they have put at risk the safety of any American POWs caught behind enemy lines.

    The criminal procedures used in federal courts are intended to protect individuals from being overwhelmed by the government’s vast resources, as in the case of rules that bar prosecutors from using evidence obtained illegally. Those who advocated instituting military commissions after 9/11 assumed that military courts would not be burdened by such rules and thus would be efficient and fast, if not accurate.

    The idea quickly took hold in an atmosphere in which Bush had declared the 9/11 attacks an “act of war.” A cadre of his legal advisors advanced a vision of an unrestrained executive, a theory of presidential primacy they called the “unitary executive.” Under that theory, according to Bravin, the executive stood as the nation’s “mighty trunk,” with the legislature and judiciary mere “offshoots.”

    One lawyer then working in the White House’s Office of Legal Counsel (OLC), John Yoo, had long advocated such a theory, and he was now in a position, at a unique time in history, to make it happen. He authored numerous memoranda for OLC that ranged from justifying warrantless electronic surveillance at home to nullifying the Geneva Conventions abroad. He also wrote that the president could use the military instead of law enforcement to go after suspected terrorists at home and that he could disregard the Fourth Amendment prohibition on unreasonable searches and seizures when he did so.

    Historically, courts-martial have been used by the United States military to punish soldiers for violations of the Uniform Code of Military Justice. Before 2001, military commissions have also been used as ad hoc tribunals convened to adjudicate crimes of war committed by enemy prisoners close to the theater of war. They were envisioned as a necessity borne of wartime conditions and the unavailability of the US court system.

    Numerous people within the Bush administration were not happy with the idea of prosecuting terror suspects in military commissions, including John Ashcroft, then attorney general. Ashcroft was only the first of a series of attorneys within the Department of Justice to make the argument that DOJ prosecutors were better equipped to prosecute and obtain iron-clad convictions of suspects accused of terrorism-related crimes. After all, they had already convicted the four men accused of the August 1998 truck bombings in Kenya and Tanzania.

    Another critic of the proposal was CIA Director George Tenet. The CIA had not requested any alternative to the federal courts, and it was in fact very pleased with the results obtained by the federal prosecutors, particularly in the Southern District of New York, home to the biggest terror-related prosecutions. Tenet was concerned that military commissions would lead to legal uncertainties and introduce staff unfamiliar with the Foreign Intelligence Surveillance Act and other mechanisms used in the federal courts to protect sensitive intelligence information.

    As Bravin details, the proponents of the military commissions won. In the rush to prove themselves patriots, a hawkish Congress quickly passed the original Military Commissions Act of 2001, which allowed even evidence obtained through torture to be used by the prosecution. This was, of course, an enormous political football, and one that many in the administration and the JAG found hard to stomach, despite being told to proceed by their superiors. Many other procedures were permitted that contributed to concerns about fairness: commission judges needed not be attorneys; hearsay was admissible; and it was unclear at first whether or not a defendant could insist on representing himself. Moreover, the MCA applied only to aliens, not to citizens accused of terrorist acts, setting up bizarre differences in treatment based on accidents of birth that only added to the appearance of unfairness. John Walker Lindh, for example, known as the American Taliban, was tried in federal court and received a 20-year sentence when he pled guilty.           

    Underlying this story is a basic flaw in the commissions process, unforeseen by its architects. Trials in United States federal court are seen by most observers as fair and just, even when they result (as they mostly do in terrorism cases) in convictions with long sentences. But in the military commission cases, with their questionable procedural approaches and so many unanswered questions, the government appears to be railroading the defendant. Implicit in Bravin’s analysis is a lesson for prosecutors of the future: be careful not to overreach. The terrorist suspect you hope to put away for life needs to have a fair trial in order for the conviction to stick.

    The most shocking revelations in this book relate to the arbitrary whim of the executive in releasing some of Guantanamo’s most dangerous suspects, while keeping other, low-level prisoners captive. In early 2003, Stuart Couch, a JAG lawyer tapped early on to prosecute commissions cases and the book’s central protagonist, was preparing to prosecute a British national by the name of Moazzam Begg, who had been captured in Pakistan in 2002. Among other things, US sources claimed to have found a money order in an Al Qaeda training camp that specifically implicated Begg. The Iraq War was just beginning, and the Americans needed multinational support. British Prime Minister Tony Blair came to visit George Bush, and remained his staunchest ally. Bush privately guaranteed Blair that “no British citizen would face a military commission.”  Begg was then transferred without any trial at all and returned to England a free man, while prosecutors were left to wonder whether he had really been a dangerous international terrorist, as they had been told, or just a nobody who was being railroaded. As Bravin notes, “[n]either possibility reflected well on the United States.”

    Another example of the demoralizing effects of executive discretion is the case of Jose Padilla  and Binyam Mohamed, who were detained together while trying to leave Pakistan and accused of attempting to explode a “dirty bomb” in an American city. Padilla, born in the United States, was prosecuted in the federal courts, while British citizen Mohamed was slated for military commissions. While Padilla was eventually convicted and sentenced to 17 years in prison, the Bush administration dropped charges against Mohamed and sent him back to England, again at the request of the British government, with no trial whatsoever. He was eventually paid $1.5 million to settle allegations that the British were complicit in torture he suffered in the CIA’s rendition program.

    According to Bravin, Germany also advocated for and was granted return of its suspects, as did Saudi Arabia and other important allies of the United States. By contrast, the governments of Yemen, Afghanistan, and others had insufficient pull to repatriate detainees, whether high level or not. According to Bravin, the vast majority of those held at Guantanamo were not the big fish, but very small-time operators — if they were guilty of anything at all — and prosecutors referred to them as the “butcher, the baker, and the candlestick maker.”

    As many have noted, the United States’ failure to recognize basic rights accorded by the Geneva Convention (not to mention our own Constitution) has endangered our own military and other citizens serving abroad. Geneva requires that individuals be treated either as POWs, and tried by the same procedures as a US soldier, or as civilians, tried by a regularly constituted court. Yet the military commissions offered neither. Bravin illustrates the dangers of this position by recounting the problems the US faced in 1993, demanding that a Somali warlord treat a captured American pilot according to the Geneva Convention, when, under the position taken by the Bush administration, the warlord, because he was not a “state,” was neither protected nor bound by the treaty.

    The Obama administration, despite its call for change, failed in its efforts to close Guantanamo, as the Republicans successfully outflanked the administration in outlawing transfers of detainees for prosecution or detention on US soil. What is less well known is how the administration failed to end military commissions, merely instituting a few changes to the draconian rules of the past. While statements produced under torture would not be admissible, the commissions could still operate without constitutional guarantees that would apply in federal court. The military commissions under Obama have continued to dispense injustice, with trials slow in coming and subject to ad hoc decisions on procedure, with the end results forever subject to second-guessing and doubt.

    Bravin’s book recounts this complex decade-long string of events, with new revelations and admissions from those inside the military commissions experiment, including some from the Bush administration’s incubators of the plan, some prosecutors given the thankless task of prosecuting criminals without being given access to evidence held by the CIA, and some involved in the State Department’s diplomatic efforts. This is not an encyclopedic account, but a quickly moving narrative designed to illustrate and analyze the pitfalls of this particular chapter in American judicial and political history. Bravin’s journalistic background is apparent in his penchant for telling stories around particular protagonists, which serves him well, demonstrating the integrity of his investigation and his skills in getting sources to talk.

    As Bravin’s book eloquently shows, our experiment with “Justice Lite” has failed. What happens next is up to the president who campaigned on the promise to close Guantanamo and restore the rule of law.


    Anne Richardson is a Civil Rights Attorney and Partner at Hadsell Stormer Richardson & Renick. She currently represents a detainee in Guantanamo Bay in his civil petition for a writ of habeas corpus.


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