A Second Chance for Second-Class Justice?

By William Fisher

In his Harper’s Magazine column in January of last year, Scott Horton raised the question, “ Can the Military Commissions Be Salvaged?”

Horton, himself a Constitutional lawyer, went on to say, “Among those who are most engaged with them, there is a general consensus that the military commissions created by the Bush Administration were a huge embarrassment. The question is whether they can now be salvaged and turned into something respectable.”

Why, he asks, “with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush Administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail…”

In the legal mishmash that the Military Commissions became, it seemed painfully clear that the second-class justice designed to be meted out by the Detainee Treatment Act of 2006 wasn’t going to fly. In fact, it was cut off at the knees by the Supreme Court in its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

The 2006 law was followed by another in 2009, which was said to be more robust and more likely to provide fair trials and fair verdicts. This was in sharp contrast to the attitudes toward the 2006 law. But most legal experts agree that the changes President Obama spoke of as substantive were largely in the nature of tweaks and procedural changes – except for the new provision that detainee statements obtained under duress would not be admissible in military courts.

Two of the Commissions’most outspoken critics on the issue were Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, and Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld said that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

Then, of course, Congress was not in any mood to accept the Obama view that Article III Courts would be the most appropriate venues in which to try terror defendants. This was, first, a question of executive branch power over the legislature. Second, it was just plain political cowardice. By Republicans. By Democrats. And by The President, who never put the full force of his office behind the Article III movement.

Hysterical congress people were obsessing in public about “running into” terror defendants on the sidewalks near the Federal Courthouse in downtown Manhattan, or sharing popcorn with them at the local movies. Having spooked themselves and their constituents, it didn’t take much for these 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 (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.

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

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 was left with only bad options, and not many of those.

Back to Military Commissions is the option it took. 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, told us, “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.”

He added: “The 2009 version of the Military Commissions Act is a good example of the phrase ‘lipstick on a pig.’ It provides a few enhancements so President Obama can publicly embrace a process he longed condemned and at least make an argument that he hasn't totally abandoned the principles he speaks so eloquently about but has a hard time practicing. “

“I believe there was a time when military commissions, if done right, could have been credible, but that ship sailed a long time ago. We're like the little boy who kept crying wolf: we've reformed the military commissions over and over and over for 11 years and each time we've assured the world that this time, unlike the other times we said we'd made it right, it really is justice. The world called male bovine manure on that claim years ago and no amount of spit-shine is going to make anyone believe it's suddenly pretty and doesn't reek.”

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.”

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, told us, “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.”

And Amnesty’s Tom Parker weighed in with a critique of a speech on The Supreme Court’s decision on 29 June 2006, when The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

“There is simply no way to reconcile Barack Obama’s embrace of military commissions with the core criticisms made about Bush’s system. Just consider what was said in the past about Bush’s military commissions by key Obama officials, Bush critics generally and, on occasion, even by Obama himself, and decide for yourself if this is anything other than a replica of one of the worst and most extremist abuses of the Bush era”.

“One of the most definitive claims in this regard was from Obama himself, who — at the height of the presidential campaign last August, after Salim Hamdan was convicted of minor charges by a Guantanamo military commission — issued a statement that included this:

“That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.”

Prof. Peter Shane of the Ohio State University law school reminds 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,” says Prof. Shane.

He continues: “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.”

Finally, veteran human rights defender Chip Pitts tells Prism, “The administration mishandled Congressional relations in ways that undoubtedly made it harder for President Obama to keep his campaign promises to close Gitmo and move away from military commissions, but its continued failure to deploy serious political capital on the entire cluster of domestic rule-of-law and human rights issues remains short-sighted.”

He continues: “Fears of trying these suspects in regular American courts are unfounded and unworthy of the ‘land of the free and home of the brave’, and make terror a self-fulfilling prophecy.”

Then Pitts asks, “Might America really execute an individual the US government tortured, on hearsay evidence, in illegal tribunals designed to convict, without a full and fair trial? “
Pitts concludes: “The only reason to have second-class systems of justice is to dispense second-class justice. Especially when it comes to political offenses like terrorism, such tribunals affirm rather than refute the terrorists’ claims that the dominant system is unjust. The very existence of such tribunals thus undermines both the rule of law and effective counter-terrorism, which is why (until they were resurrected by George W. Bush and his cohorts) the United States routinely condemned them, and it’s why such tribunals were increasingly relegated to historical works about the Dark Ages or novels like 1984 about a dystopian future. Now, that dystopian future is here.”

Chip Pitts is the former head of Amnesty USA and currently a law lecturer at Stanford and Oxford Universities.

Finally, Loyola University Los Angeles law professor David Glazier is quoted by Agence France Press (AFP) that the decision to allow confessions made under duress by Canadian Omar Khadr “do nothing to help the credibly of the (military) commissions. “Decisions which err on the side of allowing disputed evidence into the trials will only serve to fuel that criticism and undermine public confidence in trial verdicts,” he added.

Khadr was due to be transferred back to Canada last fall as part of a 2010 plea bargain in which he pleaded guilty to the murder of an American Army medic. At the time of the plea bargain, the Canadian government indicated it was “inclined to favorably consider” his transfer. However, the Public Safety Minister has yet to give formal approval for his return to serve the remainder of his sentence.

Lawyers for Khadr have asked a federal court to force the Canadian government to make a decision. Canadian authorities have said they are waiting to see the taped interviews.

Khadr, who was fifteen at the time of his capture by the American government, is the only remaining Western national at Guantanamo Bay.

Given estimates of those detainees who will be tried by Military Commissions, plus those who will eventually be repatriated to countries willing to welcome them, some 50 prisoners are left who can not be tried or released.

These prisoners are destined for indefinite detention, unless the Obama Administration surprises us all and finds another way to handle these cases.

Don’t hold your breath!


This article originally appeared in thhe pages of Prism Magazine.