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March 16, 2015

Reinventing the Wheel: Military Commissions and Transitional Justice

Not too long ago I spent a week in Guantanamo Bay as an observer for Human Rights First. I attended a military commission hearing for Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the U.S.S. Cole and other attacks. I am well versed in the failures of the military commissions, but being on the ground provided a new perspective. 

In law school I studied transitional justice, or mechanisms for a country to move past widespread violence or mass atrocities and towards peace and reconciliation. While trying to make sense of everything going on around me in Guantanamo, I realized that by approaching the commissions with this framework in mind, I understood yet another way the military commissions are failing the victims, the accused, and ultimately the United States.

As I wrote last week, a recent issue in the al Nashiri case was “Change 1,” the Defense Department order that would have forced all military commission judges to move to Guantanamo. At first glance, this change seems logical: in other ad hoc tribunals, such as the International Criminal Tribunals for Rwanda and the former Yugoslavia and the Special Court for Sierra Leone, staff have been full time. Change 1, though, didn’t apply to everyone working at the commission, only the judges. And even if it did, at this late stage, such a change would disrupt the proceedings and cause even more delays. Furthermore, the court ruled that by embracing Change 1, the Convening Authority—the senior Pentagon official who oversees the commission—created at least the impression of trying to rush and otherwise interfere with the proceedings.

Historically, a separate, ad hoc tribunal to deal with war crimes is only created when the local, domestic courts are unable or unwilling to hold the trials themselves. Courts in Rwanda (or the former Yugoslavia, Sierra Leone, Cambodia, etc.) were simply not able to deal with the scale and complexity of the cases after conflict. These entire countries were war-ravaged; domestic courts barely had pens and paper, much less adequate technology, victim and witness protection programs, educated judges and lawyers, and physical space to deal with war crimes trials.

It would have been better if domestic courts had heard these cases—they would have been more culturally sensitive, involved more members of the community than international experts, and geographically closer to those affected. The Rome Statute of the International Criminal Court explicitly addresses these considerations: cases are inadmissible unless the home state is unwilling or unable to adequately investigate or prosecute.

None of these concerns apply to the United States. We have federal courts that time and again have demonstrated that they are fully capable of holding terrorism trials. They are closer to the victims, who currently have to be flown down to Guantanamo along with observers, press, and trial teams. They are not corrupt. They employ some of the best lawyers and judges in the world. They have adequate technology. They have support systems for witnesses. They have protection for classified information.  They have Internet access. They have pens.

Some argue that it’s preferable to hold trials in military commissions because their rules can allow more evidence to be admitted than federal courts. Federal courts, though, are doing just fine. In the last 15 years they have convicted hundreds of terrorists, including Osama bin Laden’s son-in-law. Military commissions: only six, three of which have been overturned. No federal judge I am aware of has complained of evidentiary constraints. And if the motivation for using military commissions is their relaxed evidentiary rules, that implies the United States is using them to get around standards for fair trials. Yet some of our lawmakers continue to push to expand the commissions.

Transitional justice is supposed to supplement a domestic legal system in times of great pain, fear, and disruption. Most mechanisms are created after atrocities that ravage a population and leave its judicial system in shambles.

The events of 9/11 were devastating, and they left the United States with pain, fear, and disruption. But they did not destroy our country and they did not destroy our justice system, which remains one of the best in the world. This system doesn’t need to be supplemented or replaced.