Guantánamo Military Commissions: Neither Military Nor Justice ….

Speaking in his personal capacity at a House Armed Services Committee hearing this morning, Retired Air Force Colonel Morris Davis, the former chief prosecutor for the Guantánamo military commissions, delivered a stinging condemnation of the military commission system: “What we are doing at Guantánamo is neither military nor is it justice.”

Davis identified four main problems with the military commissions that compromise their legitimacy:

First, he said the military commissions should be free of political
interference. Davis proposed to resolve this issue by placing the trials
under complete military control. Transferring the prosecutions to federal
court, as Human Rights First has advocated, would also effectively tackle this
problem and solve many others as well. Federal judges have a long history
of independence and impartiality and they are well equipped to deal with
pressures emanating from the executive.

Second, Davis criticized the unlawful influence the Office of Military Commissions has exerted on the military prosecutors at Guantánamo due to the chain of command at play in the military commissions. This is one of the most controversial aspects of the
military commissions system; again, it would be resolved by transferring the
prosecutions to federal court. The federal judiciary’s independence from
other branches of government would help to restore the legitimacy of criminal
prosecutions of these prisoners.

Third, Davis urged the government to commit to open and transparent trials. He said the government went astray by focusing on speed at the expense of transparency. Trying terrorism suspects in federal court would enhance the openness and transparency of the proceedings by ensuring that time-tested American law and procedures are followed.

Finally, Davis decried the use of evidence obtained by coercive techniques as inhibiting the legitimacy of the military commissions. Transferring the prosecutions to federal court and abiding by the federal rules of evidence would greatly enhance the legitimacy of the trials of these prisoners. Admitting any coerced evidence is a slippery slope, and the interest of justice demand the government rely on other kinds of evidence.

Davis concluded by calling for development of a new system that would bring justice to detainees. He urged Congress and the American people not to stall until the November election or the inauguration of a new president to develop such a system. Davis is right: Delay is both unjustified and unnecessary. A system to try Guantánamo prisoners accused of criminal offenses already exists: the federal district courts. Rather than trying to invent some new court system that inevitably would be the subject – as the military commissions have been – of years of legal challenge, we should use the existing federal courts that have proven themselves more than capable of adjudicating terrorism cases, of bringing persons accused of terrorist acts to justice, and of bringing justice to the victims of terrorist acts.