November 01, 2004
Setting the Stage for Justice
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.