Another Chance for Second-Class Justice?

By William Fisher

The report in yesterday’s New York Times that the Obama Administration is preparing to resurrect Military Commissions to try Guantanamo detainees probably sounds the death knell for the kind of justice meted out by Federal civilian courts in the U.S. for more than two centuries.

Instead, according to some of the nation’s most respected legal authorities, we are about to slither into the quicksand of a regressive judicial “system” designed, not to dispense justice, but to get convictions.

The Administration’s plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.

Since then, that objective has been immobilized by a perfect storm. The President’s Task Force assigned to review each detainee’s case found itself hog-tied by the Bush Administration’s sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.

Then, a Federal judge ruled in the matter of the Uighers – Muslims from China – held at GITMO for years without charge or trial. These men had already been cleared for release – but where were they to go? They couldn’t be sent home to China, where they surely would face China’s merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.

Amidst this genuine – and exhausting -- effort, a Federal Judge took up the Uighurs' case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.

Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.

But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.

It didn’t take much for our courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.

Trial. Oh yes, that was back in the days when civilian Federal trials for GITMO detainees were still on the table. Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.

The self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed (KSM), was to be the first to be tried and his trial would take place in Federal Court in New York City (home of dozens of other terrorist trials). Mayor Bloomberg of New York was enthusiastic about all the attention and tourist dollars this trial would bring to his city. And he said so. But then he went quiet. For days nothing was heard from him. And the next time he surfaced, he was embraced by the New York City Congressional delegation, and he and they had taken a 180-degree turn. Federal trials in New York: Bad Idea.

This despite the fact that dozens of accused terrorists – including Zacarias Moussaoui, dubbed the “20th hijacker,” have been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.

But Obama was not to be easily deterred. While Congress and the administration’s critics were becoming increasing apoplectic about the prospect of meeting a terrorist in the men’s room of the U.S. Courthouse in Manhattan, the Obama team readied itself for its first trial of a GITMO detainee to be held in the Continental U.S.

It was not KSM, however. It was a man who would perhaps provide a dress rehearsal for a KSM trial later. His name was Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of American Embassies in East Africa.

After 41/2 days of deliberation, the jury cleared Ghailani of more than 280 counts, including the top charges of murder and murder conspiracy, and convicted him on one count: conspiracy. He faces a mandatory 20-year-to-life sentence for the conviction.

Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.

New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict "a disgraceful miscarriage of justice."

Congress sided with King and the trial’s many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.

Ergo, the Administration is left with only bad options, and not many of those. It can forget about trials altogether. These prisoners will just make up part of the group that, regardless of any other factors, the Administration intends to hold indefinitely. It can continue to try to find countries to host those inmates cleared for release (the largest single group of these is from Yemen; and there is currently a ban on repatriating anyone to Yemen because of the recent reported Al Qaeda activity there). Or it can revert to the quaint system of justice fashioned by the George W. Bush Administration: the Military Commission.

That’s the road it is reportedly taking. And that news has furnished critics with a large, loud microphone.

Lawyers who are intimately familiar with the Military Commission system say it is not designed to produce justice; it is designed to produce convictions. They call it a second-class justice system.

Morris Davis, former chief prosecutor at Guantanamo Bay, and now executive director of the Crimes of War Project, told The Public Record, “In more than nine years since President Bush authorized military commissions, we’ve conducted a total of five trials and generated nothing but universal condemnation. We’re long past the question of whether we could do them to one of whether we should. Putting lipstick on this pig is not going to convince anyone that she’s been transformed into lady justice.”

Another GITMO veteran, Darrell J. Vandeveld, who resigned his appointment as a prosecutor before a Guantanamo military commission because of a serious ethical issue, told us, "Right after the President issued the order to close the prison, nothing good will come out of Guantanamo for years. Nothing has been accomplished during this hiatus except to demonstrate that military commissions are inferior, deeply-flawed ‘courts,’ that have delivered, in the few cases tried, inferior justice and utterly inferior results. Ghailani will likely receive a life sentence; Omar Khadr will likely be a free man in less than two years. The prior administration's politicization of the military is unprecedented, and, as we see, ruinous. The current administration is only rejoining this fin de siecle circus."

David Frakt also has equally serious doubts about the legitimacy of the Military Commissions.

It was Frakt who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial.

Frakt argued that Hartmann had "...exercised unlawful command influence. Frakt also argued, during his challenge of Hartmann's unlawful influence, that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt argued that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."

Frakt told The Public Record, “The Administration’s plan to restart the flawed military commissions in Guantanamo demonstrates that they have caved in to the bullies in Congress who have used fearmongering and disinformation to preempt the best and most appropriate option for prosecution of the few real terrorists at Guantanamo -- federal criminal trials.”

He continued: “The apparent willingness of the Administration to allow a detainee who was admittedly tortured to be prosecuted for crimes committed well before 9/11, under a theory that the U.S. was in a state of armed conflict (i.e. war) with al Qaeda since 1996, reveals how little has really changed in the current Administration’s approach from the predecessor administration.”

Frakt is now a professor at the Barry University law school.

He added, “Given that President Obama abandoned his campaign pledge to abolish the military commissions and opted to reform them, it is not surprising that the military commissions are resuming. However, President Obama’s stated view that federal courts are the preferred option and that military commissions should only be used for violations of the law of war has clearly changed. Now that military commissions are perceived as the only viable option, the President seems to be willing to allow prosecutions for terrorism offenses regardless of whether they are traditional war crimes.”

Human and civil rights groups are no less vociferous in their condemnation of Military Commissions.

For example, Hina Shamsi, Director of the American Civil Liberties Union (ACLU) National Security Project, told The Pubic Record, “Trying Guantánamo detainees in the military commissions - which are designed to ensure convictions, not fair trials - would be a major step backward for attempts to restore the rule of law.”

She added, ”It is disappointing that the administration seems determined to proceed with the discredited commissions, but has made little progress on prosecuting suspects in the more reliable federal courts. If credible evidence exists against Guantanamo detainees, they should be prosecuted in federal criminal courts, which are fully capable of handling complex terrorism trials and delivering outcomes we can trust.”

Similar sentiments come from Bill Quigley, legal director of the Center for Constitutional Rights (CCR), a public interest law firm that has mobilized dozens of pro-bono private sector lawyers to defend Guantanamo detainees.

Quigley, also a professor at the Loyola University law school, told The Public Record, "We think President Obama has made a major mistake in getting behind military commissions. This is a second class system of justice for the Arab and Muslim men in Guantanamo. This second class system will likely be struck down by the courts and certainly will subject the US to more international condemnation for these violations of human rights."

He added, "Federal courts have worked since our country was founded. They can work now."

Finally, most of the attorneys contacted by The Public Record could find few redeeming qualities in the Military Commissions.

Prof. Peter Shane of the Ohio State University law school reminded us that, “In November, 2009, Attorney General Holder told Congress, ‘The venue in which we are most likely to obtain justice for the American people is in federal court.’ He’s right,” said Prof. Shane.

He continued: “Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.”

He concluded: “The best thing that can be said about the resumption of trials is that formally adjudicating the culpability of the remaining detainees pursuant to reasonably decent procedures is better than indefinite detention without adjudication. Of course, had we not subjected any of the detainees to abusive interrogation – the value of which has been doubted even by the CIA Inspector General – all detainees accused of war crimes could probably have been brought to justice consistent with the rule of law.”