November 02, 2004
Transient Life at Guantanamo
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.