Opening Argument – The Military’s Mess at Guantanamo And How To Fix It

National Journal

The first of the ad hoc military "commissions," which finally held its first pretrial hearings at the Bush administration’s Guantanamo Bay prison camp in late August, has been something of an international embarrassment. We can do better.

I refer here to the pending criminal prosecutions of Osama bin Laden’s chauffeur and three other suspected Qaeda members for alleged war crimes. The prisoners are to be tried by a Bush-created commission with a retired Army judge as presiding officer and four active-duty officers as members. These proceedings are not to be confused with the less formal (and even more slapdash) hearings that began in July before three-officer "Combatant Status Review Tribunals," to determine which of the other 580 or so Guantanamo prisoners — most of whom will not be criminally prosecuted — are "enemy combatants" subject to continued detention.

There is much to be said for using special military tribunals rather than civilian courts to try alleged war crimes by terrorists captured on foreign battlefields. Sometimes, security concerns may call for trials in remote locations, for greater secrecy than civilian courts allow, and for use of hearsay and other evidence that is inadmissible in civilian courts.

But so far, the Bush administration has botched the job. By turning its back on more than five decades of progress in the quality of military justice and instead using a deeply flawed 1942 precedent as a model, the administration has designed its "commissions" in ways that fall short of fairness.

Among the embarrassments at last month’s preliminary hearings:

• Retired Army Judge

Peter Brownback was handpicked to be the presiding officer by his close friend John Altenburg. Defense Secretary Donald Rumsfeld had earlier picked Altenburg to oversee the commission process as the "appointing authority." Military defense lawyers challenged the impartiality of Brownback and other commission members: One of them had gathered intelligence about Qaeda and Taliban forces in Afghanistan, and another had helped coordinate the transport of prisoners to Guantanamo.

• Brownback is the only commission member who has legal training; nevertheless, he at times seemed to share his colleagues’ confusion about the still-uncertain rules he was supposed to enforce.

• The proceedings were marred by sometimes-egregious translation errors, prompting disputes about many things, including the official translator’s interpretation of a supposed confession of Qaeda membership blurted out by a Yemeni defendant.

• While the military lawyers assigned to represent the four defendants were commendably aggressive, they all had to work out of one crowded room, and they were given inadequate access to interpreters, support staff, and other resources, by comparison with the more numerous prosecutors.

• One defense lawyer plans to leave the service because he was passed over for promotion. One wonders: Did his superiors hold his aggressiveness in defending his client against him? It took nearly three years for the Pentagon to bring the first defendant before the first commission, authorized by a hastily drafted November 2001 Bush order. This delay seems especially incomprehensible in light of the Pentagon’s March 2002 letter citing "the need to move decisively and expeditiously" in spurning the American Bar Association’s request for a chance to comment on the draft procedures.

After all this time, the allegations against the first four defendants hardly support Rumsfeld’s description of the Guantanamo detainees as "among the most dangerous, best-trained, vicious killers on the face of the Earth." Take Salim Ahmed Hamdan, another Yemeni, who was Osama bin Laden’s chauffeur and, allegedly, his sometime bodyguard and transporter of weapons. The charges against Hamdan — conspiracy to commit crimes including murder and terrorism — do not allege that he ever participated personally in an attack. Are these really the worst guys we could find among the 600-plus alleged Qaeda and Taliban fighters who have been imprisoned at Guantanamo?

The shaky start-up has highlighted the fundamental flaws in the design of the military commissions. White House and Pentagon lawyers modeled them on the far-from-fair process that President Franklin D. Roosevelt slapped together in 1942 for the secret trials and hasty executions of a handful of "saboteurs" who entered the U.S. off German U-boats. The administration has discarded wholesale the far-more-detailed, far-more-modern, congressionally enacted rules and procedures that have been used for decades in ordinary military courts-martial. The White House has left it to the Pentagon and the presiding officer to make up procedural rules as they go along. Perhaps the most glaring defect is the administration’s evasion of appellate review — which is routinely available to defendants in ordinary courts-martial — by military courts and the U.S. Court of Appeals for the Armed Forces. With five presidentially appointed, Senate-confirmed judges who, by statute, must be drawn "from civilian life" and serve 15-year terms, the court is relatively insulated from fear of presidential or Pentagon displeasure. By contrast, military commission rules route appeals to a three-judge "review panel" handpicked by the same Defense secretary who has pronounced the Guantanamo detainees to be "vicious killers." The final appeal goes either to Rumsfeld or to the same George W. Bush who has said, "I know for certain that these are bad people."There is a better way: Follow all or most of the long-established, congressionally enacted, elaborately detailed court-martial rules and precedents that are used to prosecute our own service members, including those accused of war crimes at the Abu Ghraib prison in Iraq. Indeed, this is precisely the approach that Sen. John Edwards has recently said a John Kerry administration would follow.

While military trials of any kind would draw objections from many libertarians and human-rights groups, the modern court-martial process has earned a reputation for fundamental fairness and de facto independence from political and command influence. And international critics of Bush’s decision to give his military commissions jurisdiction over only foreigners would have less reason to complain if those foreigners got the same (or almost the same) fair-trial protections as do our own soldiers.

The court-martial approach, explains professor Neal Katyal of Georgetown Law School, a critic of the Bush approach, would also require assigning these cases to randomly selected military judges and jurors rather than to people "handpicked by the civilians at the Pentagon."

I have some sympathy for retaining two military commission rules that depart from the usual court-martial process. One allows military commissions to consider hearsay and other ordinarily inadmissible evidence if it "would have probative value to a reasonable person." (The commission rules go too far in appearing to allow testimony obtained through torture.) The other rule provides that, when justified by security concerns, sensitive evidence may be concealed from defendants (although not from their military lawyers) and the public.

But any such deviations from the established rules should be based on proven need and vetted by Congress. Instead, Bush has chosen, in Katyal’s words, to "junk an entity with a proven track record for a speculative gamble that has produced literally no payoffs after three years."

Procedural problems aside, does it make sense to even bring war-crimes prosecutions against such a small-fry as bin Laden’s chauffeur? Such cases may risk trivializing Al Qaeda’s monstrous crimes by focusing on relatively minor accessories who have no blood on their hands. Another risk — especially in the event of acquittals — is increasing the international pressure to release not only the defendants but also other, unprosecuted Guantanamo detainees, even if they still seem dangerous.

On the other hand, the chauffeur surely helped bin Laden’s jihad more than did some defendants who have already been prosecuted in civilian courts, such as John Walker Lindh, the "American Taliban," now serving a 20-year prison term. And credible prosecutions of people such as bin Laden’s chauffeur could send a symbolic message that giving even relatively minor assistance to mass-murder terrorists is a grave crime warranting severe punishment.

Sending such a message is, however, just about the only thing we can accomplish by prosecuting small-fry detainees at Guantanamo, as compared with the alternative of simply keeping them locked up as enemy combatants. And if the trials aren’t seen to be fair, the intended message will be eclipsed in world opinion by a far different one: that America is railroading Arabs, Afghans, and others through a second-class justice system from which it has exempted its own citizens.