Some of the most heated debate before the commissions occurred on the afternoon of November 2, when the two sides addressed Hicks’ motion to dismiss the charges against him on the grounds that the military commission system violates constitutional requirements to provide all persons equal protection of the law. The thrust of the motion was that the Constitution doesn’t distinguish between citizens and non-citizens when the Government seeks to punish individuals under the criminal laws. While there are many areas of the law in which citizens have more rights than non-citizens – the right to vote, for example – non-citizens facing U.S. criminal trial have long had the same due process protections as citizens.
Civilian Defense Counsel Josh Dratel argued that the President’s November 13, 2001 Military Order establishing the military commissions was fundamentally flawed because it only authorized military commission trials for non-citizens. Since several of the government’s most important authorities in support of military commissions were cases involving citizen defendants (one of the saboteurs in the 1942 Nazi saboteur case, Ex Parte Quirin, for example, was a U.S. citizen), the prosecution could hardly point to historical experience to justify excluding citizen terrorists from the current vintage of military commissions.
In contrast, Prosecutor Lt. Col. Entwecher described the military commission system as providing the state-of-the-art in fair trials. Responding to the defense lawyers’ call for application of international and U.S. constitutional standards, Entwecher asserted that “‘Commission Law’ gives equal or greater protection than any of the defense’s other sources.” For example, when Mr. Dratel raised concerns about President Bush’s public statements before trial suggesting that Guantanamo defendants were guilty, Entwecher responded that Commission defendants are presumed innocent until proven guilty, just like American defendants in U.S. court. In any case, the President’s statements weren’t about Mr. Hicks specifically – and in any case, defense counsel can ask the panel members if they were improperly influenced by the President’s words. Entwecher also highlighted what he saw as Hicks’ advantage of greater time with his lawyer than most criminal defendants have for trial preparation, And while Mr. Hicks may not have a right to see all the evidence against him, every government has some legitimate interests in keeping some classified information secret.
Civilian defense counsel Dratel appeared genuinely shocked that the prosecution could seriously make these claims. “The notion that ‘Commission Law’ provides the same or greater rights than any other system is astounding, an affront to the U.S. Constitution,” Dratel argued. Dratel honed in on evidentiary issues. He insisted the Government didn’t actually know how Hicks had been captured (since he had been turned over to the United States by Northern Alliance forces). He also pointed out that the Government would be permitted to make its case on hearsay evidence that would be excluded from a civilian trial. On presumption of innocence he was particularly passionate. “We lost panel members because of the presumption of innocence. Now we suffer because they have poisoned the well!” Dratel was referring to the Appointing Authority’s decision several weeks ago to remove two of the voting commission members from the panel given an appearance of bias against the defendants. Dratel contended that the removal of these members without replacing them with new members now made it even easier to convict Hicks: the prosecution now needed to persuade only 2 out of 3 commission members of Hicks’ guilt, instead of the 4 members the prosecution would have had to persuade if the commission panel included a full compliment of members.
Questions of Legal Expertise
A repeated important theme of the defense throughout the hearings was the complexity of the law that the commission would be working with, and the risk of prejudice resulting from the fact that a three-person panel with only one trained lawyer will be determining issues not just of fact, but of law. While military officers would, as the panel members explained, certainly have received training in broad principles of international humanitarian law – the law of war – the commission will be asked to resolve difficult and controversial questions at the cutting edge of heated debate among the world’s experts in the field: Does the administration’s “Global War on Terrorism” represent an “armed conflict” within the meaning of the law of war? How can one determine when such a conflict has ended….or when it began? Are there individuals, or places, or activities, that fall outside the scope of international and domestic law? What rights do accused “unlawful combatants” have in and outside a court?
To assist commission members, the defense lawyers had earlier submitted motions to the military commission to permit testimony as expert witnesses by six internationally reputed experts on humanitarian law, including such individuals as Antonio Cassese, former judge at the International Criminal Tribunal for Former Yugoslavia, and Michael Schmitt, one of the most distinguished of the Defense Department’s own law-of-war experts. The prosecution opposed the experts’ participation, arguing they would turn the proceedings into an unnecessary “battle of law experts.” Indeed, the prosecution asked the court for a blanket exclusion of all expert “attorney and commentator testimony.” While the panel declined to bar testimony from individuals yet to be proposed, it denied the defense leave to call the six experts requested. Commission member Col. Bogdan said that if the commission were going to choose to hear any experts, “I only ask that we – not the defense or the prosecution – make the requests. I need information from experts, but I need to know what I don’t know” before deciding which experts should be heard.
For me, one moment during the November 2 session crystallized the anxieties the defense had been expressing. Military Defense Counsel Major Dan Mori was making the argument that if Hicks was not deemed to be a “prisoner of war” (with the rights granted those in that status), then he should have been treated as a civilian, under the Fourth Geneva Convention. The point is difficult and, as Mori conceded, somewhat counter-intuitive; but just because someone is a “civilian” under the Geneva Conventions doesn’t necessarily mean he’s innocent of wrong-doing. Even someone who engages directly in an armed conflict – and who is not otherwise entitled to special prisoner-of-war status – is a “civilian” within the meaning of the law. That person can of course be prosecuted for engaging in combat, but he is still entitled to the basic procedural and humanitarian protections afforded all civilians caught up in armed conflict. In Mr. Hicks’ case, those protections would have prohibited his transfer from Afghanistan to Guantanamo Bay.
Col. Brownback, the Presiding Officer, grilled Mori about which Convention should apply to Hicks and, in a somewhat obscure line of questioning, seemed to be trying to get Mori to concede that it was the Third Convention (regarding Prisoners of War) that should apply to Hicks. While Brownback’s point was seemingly wrong on the law, he seemed to be losing his patience in his exchange with Mori, noting at one point: “I’m looking at Third Convention, article 3, Sunshine.” Brownback’s patronizing use of the nickname “sunshine” for Major Mori seemed to evince a surprising disrespect for counsel (indeed, this was the second time that day that he had used the term in addressing Mori). It also seemed a perfect example of the personal and conceptual barrier the defense feared the Presiding Officer could set up – undermining the force of defense arguments in a way fully visible to the non-lawyers on the panel.
In a post-script to this story, NGO representatives had the opportunity to talk with the Presiding Officer’s “Assistant,” a former military judge named Keith Hodges. The Assistant role had been controversial earlier in the proceedings because of indications that the Assistant would be “providing advice” to the Presiding Officer or the other commission members on questions related to their “adjudicative functions.” In response to defense objections, the commission agreed to cut back the Assistant’s role to what Hodges described as, in effect, an officer manager, handling supplies and logistics for the panel. Hodges emphasized to us that he gave no legal advice to the Presiding Officer or the commission. He then went on to give his views on the question of lawyers versus non-lawyers on the commission. He stressed the independence of the non-lawyer commission members. “Who do you want to be in a courtroom that won’t be intimidated by a colonel [i.e., Brownback]? Other colonels!”
Though many of the trial observers had hoped that the military commission might decide at least some of the thorny motions pending before it, the court left almost all the big questions open. The last day of the week’s proceedings consisted of a short housekeeping session in which the Presiding Officer stated that the panel would be reserving judgment on a battery of motions challenging the legitimacy of the tribunal and the nature of the offenses it is authorized to try. He announced that they had granted Hicks’ motion for postponement of his trial date, which is now set for March 15, 2005. He also reported that the parties had negotiated an agreement on discovery – the information the defense team would seek to obtain from the prosecution.
Many of the motions filed by the Hicks defense attacking the foundations of the military commission system are mirrored by similar motions filed by military Defense Counsel Lt. Commander Charlie Swift on behalf of defendant Salim Ahmed Hamdan, a Yemeni who worked as a driver for Osama bin Laden in Afghanistan and is charged with conspiracy to commit war crimes. Hamdan’s motions will be argued beginning November 8, and it now appears that the military commission has decided to hold off deciding both sets of motions until after the Hamdan arguments have concluded. My colleague Avi Cover will be covering the second week’s proceedings.
The Guantanamo Naval Base is situated on the two arms of Guantanamo Bay. The tip is Cuban national territory, so travel between the fairly sparse “leeward” side, where reporters and NGO representatives are put up dormitory style in the CBQ (Combined Bachelors Quarters), and the more built up “windward” side is generally by ferry. We have an army PAO (Public Affairs Officer) who supervises our stay, fixes logistical glitches, answers questions, drives us around, arranges meetings with officials, and must accompany us whenever we wish to stray further than 150 feet from our CBQ base. Sometimes our PAO also wrangles us passage on a Navy Swift Boat, which zooms across the Bay at twice the speed, a real treat. She is not, however, able to get us permission to visit Camp Delta, where the detainees are held.
Our day on Tuesday, November 2, began around 7:30, with a 10-minute car trip to the Galley, for breakfast. Most everyone else has long ago finished eating and gone off to start their work day, and there are only a handful of “migrants” in the dining room. The “migrants” are an interesting phenomenon: mostly Cubans who have been intercepted on the high seas seeking their way to America, and brought to remain on the Guantanamo Base while their asylum claims are processed. The migrants are housed in a dormitory just beyond the 150-foot zone around the CBQ, and are largely given the run of the non-restricted areas on both sides of the Bay. (By contrast, reporters and – even more – NGO representatives aren’t even permitted to go down the hill to get breakfast on their own.) During the many months or longer that they wait for their asylum claims to be processed, the migrants can earn money at jobs such as bagging groceries at the NEX (Naval Exchange), the giant grocery and department store which anchors the consumer economy at Guantanamo. The migrants are a sensitive subject, and we are instructed not to talk to them.
After crossing the Bay, we stop for a few minutes at the NEX – where some of us make quick purchases of alcohol, toiletries, cigarettes, and the inevitable souvenirs – and continue on to the military commission building, a refurbished two-story pre-fab building on a hill overlooking the Bay, that had had an earlier life as the main Base headquarters (and had also included a dental care center and radio broadcasting facility). Those attending the proceedings pass through the metal detectors and into the courtroom. While on Monday we had been permitted to bring in our binders containing the several hundred pages of motions to be argued, on Tuesday we may only bring in our note books and pens.
Commission Motions and Arguments – “Conspiracy”
The main debate of the morning revolved around military Defense Counsel Major Dan Mori’s argument that the military commission has no legal jurisdiction to try the offense of “conspiracy.” The argument is complex, but strikes at the heart of the military commission’s legitimacy. The commissions are supposed to be applying the existing international law of war, yet the defense maintains that many of the charges against their clients – such as conspiracy,” “terrorism” and “destruction of property by an unprivileged combatant” – do not exist under the international law of war.
The Presidential order establishing the military commissions, Mori explained, only authorizes the U.S. government to prosecute established war crimes, or crimes specifically authorized by Congress for military commission trial. This is as it must be, he argued, for otherwise the military commissions would be prosecuting people for doing things that were not crimes at the time the defendants may have done them. As civilian Defense Counsel Josh Dratel put it, “if someone goes swimming on Monday, you can’t pass a law on Tuesday making swimming a crime, and then prosecute the person on Thursday for committing the crime of swimming.” This prohibition of “ex post facto” prosecutions is a core principle of U.S. and international law.
The defense lawyers emphasize that even if this trial is taking place in an American court, the law of war is international law. While “conspiracy,” as a crime, is a well-established offense under the “common law” tradition of Anglo-Saxon countries, it simply does not exist in most of the world’s legal systems. In common law, someone commits the crime of “conspiracy,” generally, when he enters into an agreement with one or more other persons to commit one or more crimes and at least one of the conspirators takes an “overt” step toward execution of the unlawful goal of the conspiracy. That one act need not in itself be criminal or closely connected to any actual crime committed. Thus, for example, if John and Jack agree to rob a bank next week, and Jack goes out tomorrow and rents the get-away car, both John and Jack are guilty of conspiracy, even if they never get around to actually robbing the bank.
This last aspect of conspiracy – that the criminal act need not be completed or even come anywhere near close to completion – gives the concept great breadth, and great potential for prosecutorial abuse because someone who merely has some relationship or association with an individual who commits a crime may himself be considered to have been in conspiracy with that person, even without knowing anything about the actual criminal plans or acts of the supposed co-conspirator. It is this possible distance between the agreement and any actual criminal act that has made “civil law” systems (deriving from the continental European legal tradition) reluctant to adopt the concept in their national penal codes. (By contrast, the notion of holding someone culpable for an “attempt” to commit a crime is not generally considered controversial because the step taken toward committing the crime in an “attempt” case must be an important one, amounting to more than “mere preparation” and “tending to effect its completion.”)
While “conspiracy” may be perfectly appropriate for dealing with regular clearly defined crimes in domestic courts, or even ongoing “criminal enterprises” such as the mafia or drug cartels, when the same concept is used to describe huge and heterogeneous ideological movements, there is a high risk of sweeping into the fold marginal defendants who may have nothing to do with, and know nothing about, crimes they are held responsible for. And its application to regular military forces could be devastating. If a military force includes units that commit atrocities, and all “members” of the military force are subject to prosecution for such crimes as “co-conspirators,” regular soldiers lose the incentive to comply with the law, since they may be tried whether or not they take part.
The defense is ready and eager to invite a whole posse of some of the world’s foremost international law experts to explain that most of the international community does not accept the crime of “conspiracy to commit war crimes,” and that international tribunals, such as the Yugoslavia and Rwanda tribunals, and the International Criminal Court, have not included crimes of conspiracy either. While the concept has been incorporated into some international conventions (for example, relating to international drug trafficking and apartheid), its use in international law has largely been limited to the concept of genocide, based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which expressly criminalizes “conspiracy to commit genocide.” This exceptional inclusion of the concept for the case of genocide reflects the colossal nature of that crime, and the international consensus that plans to commit genocide must be prohibited from the moment they are hatched. (On a similar rationale, the post-World War II Nurenberg Tribunal was expressly empowered to convict Nazi leaders of conspiracy to “wage aggressive war,” yet the Tribunal specifically rejected prosecutorial efforts to expand conspiracy liability to war crimes.)
Adding to the difficulty is the fact that international tribunals such as those for Yugoslavia and Rwanda have crafted a concept of participation in a “joint criminal enterprise.” Those tribunals have held individuals liable who intentionally but indirectly assisted groups committing war crimes and other serious war-related offenses, for crimes committed by the group even when the defendant was not directly involved. The crucial distinction here, however, is that no one has been convicted in such courts for mere agreements; the crimes for which a knowing member of a joint criminal enterprise can be convicted in such courts must actually have occurred, and the accused must actually have intended those crimes to occur. In other words, “joint criminal enterprise” is a theory to describe a kind of indirect participation by someone in an actual crime; it does not constitute a crime in itself. This requirement substantially reduces the potential for overbroad application of the concept.
In response, the prosecutors noted that, historically, U.S. courts have tried and even executed defendants charged with conspiring to commit law of war violations, including, for example, the 1865 trial of the Lincoln assassination conspirators and the famous 1942 German saboteur case, Ex Parte Quirin. Also troubling for the defense, the prosecutors highlighted the highly regarded official U.S. Army field manual on the law of land warfare, FM 27-10, which does specifically include the concept of an offense of conspiracy to commit war crimes. (The 1956 Field Manual is still considered to reflect U.S. military understanding of the law of war, though it is not itself a binding legal authority.) Based on this history, the prosecutor argued, “how can the defense criticize the charge of conspiracy to commit war crimes as ex post facto? You’ve been on notice about this crime for more than 50 years!”
Looking at David Hicks, sitting between his lawyers, a small, surprisingly youthful, looking man, I wondered what this legal fiction of “being on notice” about the subtle nuances of obscure historical U.S. legal doctrines really would have meant to this Australian cowboy, adventurer, and Muslim convert.
Taking up the argument again, Major Mori accused the government of “wanting to live in the past,” dusting off generations-old precedents to rationalize trying 21st Century defendants in World War II vintage military courts for crimes described as war crimes under international law but rejected by virtually the entire international community.
As the prosecutors would make increasingly clear, as a practical matter, their view was that “commission law” was the only real standard. Their arguments urged the court to ignore such momentous developments in the law of war and other relevant law as the 1946 Nurenberg trials, the 1949 Geneva Conventions, the 1952 Uniform Code of Military Justice, the 1968 International Covenant on Civil and Political Rights, and the experience of the Yugoslavia and Rwanda tribunals in prosecuting some of the worst crimes imaginable.
My colleague Deborah Pearlstein was last here, at the end of August, observing the opening stage of military commission proceedings – the voir dire, or examination of the military commission panel for possible bias or inability to perform its functions.
On Monday, November 1, I began observing the second phase of the trials. Most or all of this first week will be devoted to pre-trial motions in the case of 29-year-old Australian David Hicks, charged with counts of conspiracy to commit war crimes, including terrorism; attempted murder by an unprivileged belligerent; and aiding the enemy. (The charges do not allege that Hicks killed or injured any individual.)
Over the past two days, almost 30 pre-trial defense motions have been debated before what is now a three-member military commission panel, comprising “Presiding Officer” (and sole lawyer) Colonel Peter E. Brownback III; and co-panelists Colonels Christopher Bogdan and Jack K. Sparks, Jr. Much of the argument presented by both defense counsel and the prosecutors was sophisticated, interesting, and often passionate. At the same time, the most worrying structural problems, observed during the voir dire phase of the military commissions, are showing themselves resistant to partial, ad hoc fixes. Hicks being Australian, and so English-speaking, issues regarding translation have not yet become an issue for the military commissions (though this may change when the same panel begins to deal with the other non-English speaking defendants later this or next week). The tenor of the proceedings thus far, however, seems to be marked by a troubling indifference to established principles of law and procedure.
It would not be possible in this space to give any comprehensive picture of the broad range of knotty legal issues covered in the salvo of motions argued so far. Over the past two days, however, I have been struck by what appears to be a concerning lack of evenhandedness on key procedural points. The prosecution is at risk of approaching legal precedent as useful when convenient, but not necessarily relevant when the case law is against them. This approach serves to undermine the idea of fixed legal standards and risks further politicization of the process.
The military commission appears to be working hard to come to decisions on most if not all of the motions while the members are down here in Guantanamo. We have been told by the military commission public affairs spokesperson that the panel members do not confer regarding commission decisions by phone or email when they are not physically together in their Guantanamo offices, so it is likely that we can expect to have a much clearer picture of where things are headed by the end of the week. As decisions are reached on the sets of substantive motions, several of which I describe below, I will try to present the courtroom context, and significance, of those decisions. Today my focus is on the question of evenhandedness, as it pertains to the composition of the military commission.
Addressing the Appearance of Bias
The first significant item addressed on Monday was a defense motion to “declare the commission improperly constituted.” During the voir dire at the end of August, defense counsel raised challenges against all of the five voting panelists (including Colonel Brownback), as well as the sixth alternate member, on the ground of apparent or potential prejudice against the defendants (for such things as having been involved in interrogation or detainee transfer decisions in Afghanistan, or having expressed the view that the detainees in Guantanamo were terrorists, or, in the case of Colonel Brownback himself, on the basis of his long-standing personal friendship with the man who appointed him and who will provide the first review of military commission decisions, Appointing Authority, retired Major General John D. Altenburg).
A tricky chicken-and-egg problem arose when the panel sought to determine whether the challenges should be granted. It was questionable how legitimate a decision on such a matter could be, when the panel members were being asked to vote on their own suitability for service on the military commission. The issue was effectively thrown up for decision by (“certified” to) the Appointing Authority.
In a follow-up memo to the Appointing Authority, Colonel Brownback recommended that two of the commission members be excused, and he refrained from issuing a recommendation regarding the challenge to his own position. A few weeks later, General Altenburg issued a decision excusing two of the challenged members as well as the alternate, while retaining Colonel Brownback as Presiding Officer. In so doing, however, General Altenburg decided not to replace the excused panelists, thus reducing the military commission for Hicks from five members to three – with no alternate. General Altenburg issud the same ruling in the case of Yemeni national Salim Ahmed Hamdan. (The same military commission panel was originally designed to hear all four of the currently pending cases.)
General Altenburg also removed the same challenged panelists from the commissions for the other two charged defendants, Hamza Ahmed Sulayman al Bahlul, also of Yemen, and Ibrahim Ahmed Mahmoud al Qosi, of Sudan. For those cases, General Altenburg proposed to appoint replacements, permitting the commission membership in those cases to retain the full original size.
The effect of these decisions was significant. On the one hand, Altenburg had agreed with defense counsel that there were valid grounds for excusing the challenged commission members. At the same time, however, in reducing the size of the panels for Hicks and Hamdan – the two defendants who had raised the original challenges – Altenburg effectively halved the prosecutor’s burden of proof. Under the commission rules, convictions in non-capital cases require two-thirds vote of the panel. With a panel of five, then, this requirement meant that the prosecutor had to convince four commission members in order to convict. With the now-reduced three-member commission, however, the prosecutor only needs to persuade two members. Without any explanation in his opinion, Altenburg’s ruling effectively punishes the defense in Hicks’ and Hamdan’s cases for raising concededly valid issues of bias in the panel – challenges they had a right to make. At the same time, Altenburg’s decisions put two pairs of essentially identically situated defendants (Hicks and Hamdan; and al Bahlul and al Qosi) in grossly unequal degrees of peril. Hicks’ motion challenged the unfair reduction of his panel.
In a related effort, the defense also tried to persuade the commission that the pool of officers from which the commission members had been selected had been unfairly restricted by the Pentagon to only the highest ranking officers (pay grades 0-4 and above), a limitation at odds with an order promulgated by the Defense Department itself (limiting military commission members to commissioned officers of apparently any rank). By including only the highest ranks, the Defense Department had excluded the majority of commissioned officers. As defense counsel noted, if otherwise qualified members like these had been excluded from a civilian jury for no apparent reason, it would be seen as jury-rigging, incompatible with a system of equality before the law.
On Tuesday, November 2, the military commission denied both of these motions. These decisions were contrary to U.S. and international fair trial standards. As troubling, they seemed unjustified by the articulated reasons for having military commissions in the first place – physical safety of witnesses and other participants, security of confidential information, looser evidentiary standards to accommodate battlefield constraints, and so on. Defense lawyers had argued that in initially appointing five-member panels for these cases – which could result in life imprisonment for convicted defendants – the Appointing Authority had acknowledged the appropriateness of a five-member panel, a number consistent with the analogous rule for general courts martial, which must have a five fact-finders (plus a non-voting judge). The only justification provided by the prosecution for the disparity was that the standard military justice rule did not apply to military commissions, and that three-member commissions were permitted (but not required) by “commission law.”
“Commission law” is the prosecution’s term for the body of new executive orders, instructions, recommendations, and memoranda that have been issued by the Pentagon since 2001 to govern military commissions. But the term “commission law” itself reflects the problem with the prosecution’s approach – treating the commissions as something they are not – a unique endeavor unmoored from the binding and experiential authority of existing legal rules. Military justice is a well established area of U.S. law, and ignoring the lessons and constraints of this justice system undermines the legitimacy of the commission process.