I was so delighted that the Defense Authorization Act, signed into law by President Obama last Wednesday, included a hard-won concession that the administration can transfer prisoners from Guantánamo 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 advisors in November 2001.
I have spent much of the last two and a half 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 Guantánamo 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, that, “[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 (PDF):
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 Guantánamo 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 Guantánamo, who spent 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 Ghaliani 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 Guantánamo.
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. Col. 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.’”
As published exclusively on Truthout.