MILITARY TRIBUNALS – JUSTICE ‘LITE’?

By William Fisher

While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.

And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.

The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.

Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.

Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.

The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.

According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”

The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.

In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.

Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.

Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.

The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”

But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.

Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”

He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”

Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.

“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”

He continued: “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”

Frakt said military commissions “are wholly unnecessary.” He told us, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”

He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”

Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.

He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"

But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”

Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”

Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”

Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”

He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”

But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”

Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”

She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”

Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”

Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”

She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?

“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”

She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”

Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”

Gabor Rona, international legal director of Human Rights First, told us, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”

He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”

The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”

Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.

He said, “These are now President Obama's military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.

While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.

Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.