On Monday, following a request from the Obama administration, Army Col. Stephen Henley, the military judge in the proposed trial by Military Commission of five men charged in connection with the 9/11 attacks — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash (from top to bottom in photo) — agreed to the government’s proposal for a 60-day stay in the proceedings, to give the administration more time to decide what it wants to do next.
The Military Commissions, established by former Vice President Dick Cheney in November 2001 and revived by Congress in 2006, after the Supreme Court ruled them illegal, were frozen for four months by President Obama on his first day in office, and then frozen again four months later, and the request for this third delay — apparently just for two months this time, until November 16 — cannot disguise the fact that Congress is struggling to establish new rules for the Commissions in an attempt to iron out problems with the much-criticized trial system, and that the administration is struggling with a decision about whether to proceed with the Commissions, or to put prisoners forward for trials in federal courts instead (as happened in June with a solitary "high-value detainee," Ahmed Khalfan Ghailani, whose trial in New York is scheduled to begin in September 2010).
Last week, the government was spurred to action by lawyers for Ramzi bin al-Shibh, whose mental competence to stand trial has been disputed by his lawyers since pre-trial hearings began last year. In what Carol Rosenberg of the Miami Herald described as "a 71-page broadside against the war court created by the Bush administration," bin al-Shibh’s lawyers described the court as "not a legitimate judicial proceeding but a political show trial" (PDF), prompting a 30-page response from the Justice Department, in which Assistant Attorney General David Kris argued that the lawyers’ claim of "constitutional defects in the Military Commissions Act are without merit" (PDF).
Despite the fact that Kris had been put forward to prevent the planned resumption of pre-trial hearings at Guantánamo this week, while government lawyers continue their deliberations regarding the Commissions’ future (and partly, I suspect, because the last two outings were so disastrous), he appeared, in summer, to deal a major blow to the continuing rationale for the Commissions. In Congressional testimony (PDF), he conceded that one of the mainstays of the charges in the Commissions — providing material support for terrorism — should be dropped because there was a "significant risk" that, on appeal, judges would not regard it as a legitimate war crime.
Critics were quick to remark that this appeared to rule out two of the Commissions’ only three verdicts — in the cases of David Hicks and Salim Hamdan, who were both convicted solely on the basis that they provided material support for terrorism — but while these arguments continue behind the scenes (and lawyers for the third man, Ali Hamzi al-Bahlul, appeal his conviction and life sentence last November, in a trial in which he refused to mount a defense), Kris told the court only that the government was seeking a 60-day delay in the 9/11 cases because "a decision might be made to prosecute [bin al-Shibh] in federal court."
For the purposes of justice, it must be said, these developments are good news. Scarcely in its history has the United States entertained such a shabby and shamelessly politicized travesty of justice as the Military Commissions, which stumbled from one embarrassment to another in their long and almost entirely unproductive history during the Bush years.
Moreover, although President Obama has managed to secure some support from within his administration — and within the Senate — for his ghoulish proposal to bring the Commissions back from the dead for a second time, the House of Representatives has, to date, refused to endorse the changes to the Military Commissions Act that have already been approved by the Senate, and, as Carol Rosenberg explained, "has given no indication when or if it will take up the matter."
This is another good sign, because, although the proposed changes, which include a ban on the use of evidence obtained through coercion and restrictions on the use of hearsay as evidence, convinced the politicians in Congress (largely the same people who passed the hideously flawed Military Commissions Act back in 2006, which introduced "material support for terrorism" as a war crime in the first place), experts with a far greater understanding of the inherent problems of the system queued up over the summer to tell various Senate and House Committees why the proposals were a bad idea, and also why they were doomed to fail.
I wrote at the time about the testimony of Adm. John Hutson, about the testimony of Lt. Col. Darrel Vandeveld (the prosecutor who resigned after seeing first-hand how the Commissions were incapable of delivering justice), and about the testimony of Maj. David Frakt, a military defense attorney in the Commissions, who reminded a House Committee of the trial system’s fatally flawed origins, and who spelled out, with unassailable clarity, why federal courts are more adequately equipped than the military to handle the limited number of genuine terrorism cases at Guantánamo.
These were not the only critics. Others included Denny LeBoeuf, Director of the ACLU’s John Adams Project, who provided a detailed analysis of the Commissions’ failings based on her observations of the pre-trial hearings in the 9/11 trial, and on a forensic dissection of the weaknesses in the Senate Committee’s legislation (PDF), and in a recent article on the release from Guantánamo of Mohammed Jawad, I included excerpts from the testimony of Col. Peter Masciola, the Commissions’ Chief Defense Counsel. Col. Masciola explained how the Commissions’ Convening Authority — a post still held by Susan Crawford, a close friend of both Dick Cheney and his right-hand man, David Addington — is an "untenable and inherently conflicted role." As he described it, drawing from bitter experience, without a radical review of the Convening Authority’s role, which is not addressed in the Senate bill aimed at reviving the Commissions, it will remain a job for a political appointee with prosecutorial functions, who is also responsible for providing — or, as Col. Masciola demonstrated, mostly refusing to provide — the defense teams with any of the resources needed to do their job.
Recently, I also came across another damning document confirming the unsuitability of Military Commissions for cases related to terrorism. Just three weeks ago, the National Institute for Military Justice (a non-profit organization established in 1991 to advance the fair administration of military justice and foster improved public understanding of the military justice system) produced a report, "NIMJ Reports From Guantánamo" (PDF), in which a number of observers reported on their visits to Commission hearings between October 2008 and January 2009.
Two accounts were particularly noteworthy. In the first, Jonathan E. Tracy, NIMJ’s Assistant Director (and a former member of the Army Judge Advocate General’s Corps) noted that, "while the lawyers and judges all operated professionally and seemed eminently qualified, there is no escaping the fact that the commissions are ad hoc proceedings with little or no legal precedent on either substantive or procedural issues," and that "the system contains several inherent flaws that make for lopsided justice, no matter how qualified the defense counsel."
Tracy observed proceedings in the cases of Omar Khadr (the Canadian who was just 15 years old when he was seized) and Mohammed Kamin (at best, a minor Afghan insurgent) and he was appalled, in particular, by what he perceived as the persistent refusal of prosecutors to provide discovery to the defense "in a timely manner " — if at all. After also revealing his dismay that questions about Kamin’s mental competency were subjected to an "inadequate investigation," he concluded, "It was very apparent that the defense counsel in both cases face a daunting challenge getting access to evidence to which they are entitled. The tactics used by the government and their cavalier dismissal of charges of unfairness damage the credibility of the commissions."
In the second account, Diane Marie Amann, a law professor and former Assistant Federal Public Defender, reported on her observation of pre-trial hearings in the cases of the 9/11 co-defendants in December 2008, and was shocked to note that, when it came to questions of self-representation, "not even the participants who are members of the bar were fully cognizant of the rules that governed the proceedings." She also noted that, because the case involved difficulties raised by the use of "waterboarding or other harsh methods of interrogation," the trial would "benefit from the certainty of precedent. Yet precedent is something utterly lacking in the military commissions."
After also noting complaints from the prisoners regarding the poor quality of the interpreters (which she compared unfavorably to her recollections of interpreters in federal court), Amann concluded that nothing she had seen eased "the core concern" that had troubled her for several years: "specifically, that the post-9/11 military commissions are unlikely to afford fair trials to the defendants who appear before them."
So bring on federal court trials, please — in which "material support for terrorism" is a genuine crime, as opposed to an invented war crime — and let’s give the Commissions the burial they deserve, in a grave marked, "Cheney’s Wretched Dreams." As Reuters explained on Monday, Navy Capt. John Murphy, the Commissions’ chief prosecutor, told journalists at Guantánamo on Sunday that "Federal prosecutors in New York, Washington and Virginia are vying to try the accused plotters of the September 11 attacks if their cases are moved into US civilian courts."
Adding that the courts in question are Washington, the Southern and Eastern Districts of New York, and the Eastern District of Virginia, Capt. Murphy also explained, "They are working with us in a joint review of these cases and it is our collaboration that will ultimately make its way in written reports that go up to the Attorney General and the Secretary of Defense to make a decision." He also said that he "still hopes" to try 65 of the remaining prisoners in trials by Military Commission, but conceded that some of the 65 had "already been indicted in US federal courts," although he "would not say how many."
After four years of research into the stories of the Guantánamo prisoners, I have profound doubts that viable cases can be established against as many as 65 prisoners — unless the administration is really determined to pursue Taliban foot soldiers in the courts, rather than al-Qaeda terrorists — but it was refreshing to hear that Capt. Murphy was talking so openly about the possibility of federal court trials.
As Maj. David Frakt explained in the one-man demolition job that he conducted on the Commissions during his testimony to a House Committee in July, "Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases."
More crucially, as Maj. Frakt also explained:
The reason that the military commissions failed — indeed, the primary mistake of the entire "War on Terror" — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.
Note: For more NIMJ documents relating to the Commissions, visit the website here.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.
As published on the Huffington Post and Antiwar.com. Cross-posted on The Public Record.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No "Preventive Detention" (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009).