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.

AG Mukasey Reasserts Need for Habeas Legislation

In testimony before the House Judiciary Committee today, Attorney General Michael Mukasey repeated a proposal he made earlier in the week for immediate legislation outlining procedures for the habeas hearings of Guantanamo detainees.

Mukasey’s proposal comes in response to the Supreme Court’s recent decision in Boumediene v. Bush, which states that Guantanamo detainees have the right to challenge the legality of their detention in federal court.

The Supreme Court “stopped far short of articulating the procedures that should apply” at those habeas hearings, said Mukasey today. “We need to protect how that [classified] information is used, who has access to it, and who doesn’t.”

The Supreme Court declined to articulate procedures because it didn’t need to. Federal courts have vast experience dealing with and effectively protecting sensitive national security information during criminal trials. In the words of the Supreme Court:

"We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible...These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

Congress cannot start down the path of trying to anticipate and resolve every evidentiary issue that might arise during the habeas proceedings. If it tries to do so, it will significantly constrict the proceedings and thus the ability of the courts to meaningfully assess the lawfulness of the detainees’ continued imprisonment.

“The latest proposal from the Attorney General fits a familiar pattern,” said Elisa Massimino, Washington Director of Human Rights First. “The Supreme Court rules against the Bush Administration’s anti-rule of law agenda and the Administration interprets that as a crisis that Congress must avert. Congress shouldn’t fall for it this time. Mr. Mukasey asserts that the Court left too many questions unanswered, when in reality his complaint is that the Administration doesn’t like the answers the Court gave: that no one is outside the protection our laws provide against runaway Executive power.”

AG Mukasey Asks Congress to Set New Rules on Detainee Hearings

In a speech before the American Enterprise Institute this morning, Attorney General Michael Mukasey urged Congress to pass legislation governing federal courts’ consideration of habeas petitions by Guantanamo detainees. He suggested that the rules for handling classified information must be modified because federal courts have already been involved in some national security leaks. This is what he said:

In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators – a list that included Osama bin Laden. This was in 1994, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden’s hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike.

But In Pursuit of Justice, a recent Human Rights First report, studies the terrorism case Mukasey mentioned (the trial of Sheikh Omar Abdel Rahman) and finds that the government was at fault by failing to invoke lawful means for protecting the unindicted coconspirator list. The report concludes:

Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden. In fact, in later terrorism cases, such as the Embassy Bombings case, protective orders have been employed to restrict the dissemination of sensitive materials.

In Pursuit of Justice recognizes that the Classified Information Procedures Act (CIPA), which governs the protection of national security information in federal courts, is not foolproof. But, based on public record, the report finds no important security breaches in any terrorism case in which CIPA has been invoked.

First Guantanamo Military Commission Trial Begins Today

HRF Staff Member Aaron Zisser is in Guantanamo this week monitoring the start of the first military commission trial in more than 60 years. Although Salim Hamdan’s trial is scheduled to begin today, the parties are still debating the ground rules, and the judge still has several important legal motions to decide. Read Aaron’s description of the ad hoc nature of the military commission process and the complex legal wrangling leading up to the trial. Aaron suggests that Guantanamo detainees should be tried in ordinary criminal courts.