The old phrases “you would have to see it to believe it,” and “you cannot make this stuff up” come to mind when thinking about the latest sessions of the Guantánamo military commissions. During the weeks of October 15 and October 22, hearings were held in the cases against the alleged 9/11 co-conspirators and the alleged USS Cole bomber before Judge Pohl in Guantánamo Bay, Cuba. The military court is closed until 2013. And, thank goodness, because after the October hearings observers’ heads are likely still spinning from the latest happenings.
To start, the government asserted that it owns the thoughts, memories, and experiences of the detainee defendants who were subjected to the government’s rendition, detention, and interrogation program (“RDI program”), including their observations relating to their treatment while in custody and how they felt when enhanced interrogation techniques were used against them. The “ownership” of this information comes in the form of classification of the information, which limits the detainee’s right to speak and the public’s right to know, and further hinders his attorney from conducting a meaningful mitigation investigation in a death penalty case. This language, vehemently defended by the government, was part of the government’s proposed protective order to govern both pending cases.
Obviously, defense counsel has an obligation to protect national security and classified information, and they made this clear during oral argument. However, aside from First Amendment concerns raised by automatically requiring closed sessions should any of this information even be uttered by a detainee or his lawyer, the impairment of such presumptive classification on the defense’s ability to build a mitigation case is insurmountable. This is a disturbing proclamation by the U.S. government — not just the Orwellian nature of the assertion, but what such a prior restraint could mean to a defendant’s right to a fair trial.
If that is not unsettling enough, in the al-Nashiri case the issue of when the armed conflict with Al Qaeda began arose in a motion to dismiss the charges due to a defective referral by the Convening Authority. In the Guantánamo military commissions the Convening Authority, who is appointed by the Secretary of Defense, is responsible for overseeing the commissions. The Convening Authority appoints the military judge and members of the panel (similar to a jury in the civilian system), and handles the pot of money shared by the commission and the defense teams. The Convening Authority also refers charges, outlined in the Military Commissions Act of 2009 (“MCA 2009”) to the commission for trial. The Guantánamo military commissions have limited jurisdiction, although seemingly retroactive, over “war crimes” committed during conflicts subject to the law of war. Not all hostilities are subject to the law of war, however.
Abd al-Rahim al-Nashiri is accused of masterminding the attack on the USS Cole in October 2000. In referring charges to the commission, the Convening Authority determined that the United States was involved in a conflict subject to the law of war in 2000. This assertion was challenged by al-Nashiri in his motion. Overly simplified, the issue is whether or not the United States was at war with Al Qaeda in October 2000, 11 months before the attacks on Sept. 11, 2001. Is this a question of fact for a jury or the Convening Authority, or is this a decision to be made by the political branches? It is a decision for the president and Congress, al-Nashiri argues, and he asserts that the Convening Authority “rewrote history” when the Convening Authority referred these “war crimes” charges against him. According to al-Nashiri, President Clinton did not use military force in response to the Cole attack, nor did Congress authorize the use of military force in response to the attack. This issue is also pending before the Ninth Circuit.
General Martins, the Chief Prosecutor of the military commissions, likes to say that there are six “Uns” that critics of the commissions system like to cite: that military commissions are unfair, unsettled, unknown, unbounded, unnecessary, and un-American. He makes this joke regularly. However, it is striking how accurate these words are when one considers the fact that the very jurisdiction of the commission over alleged crimes before it — some of the most important criminal trials in our country’s history — is unsettled, unknown, and unnecessary.
Also unsettled is the issue of whether or not the Constitution applies in the military commissions trials. The 9/11 defendants sought a ruling that the Constitution presumptively applies to the commissions and that it is the government’s burden to rebut that presumption. The government, instead, argued that the doctrine of constitutional avoidance should apply and that the applicability of the Constitution should be addressed on a case-by-case base. The MCA 2009, they argue, makes clear that Congress did not intend for every constitutional right to attach to trial by military commission; therefore, constitutional rights are either incorporated by statute or they are not, but there should be no presumption that the Constitution actually applies at Guantánamo. NACDL believes that all constitutional rights affecting a defendant’s right to trial, right to counsel, and punishment apply to the Guantánamo military commissions irrespective of the MCA 2009. NACDL also believes that all of the six “Uns” noted by General Martins above are legitimate criticisms of the Guantánamo military commissions. You might say that NACDL also finds the commissions to be unpopular and unsuccessful.
Another phrase critics use for “unsettled” is “making it up as they go along.” This was apparent during litigation over the constitutionality of two sections of the MCA 2009 that govern defense access to expert witnesses and fact or lay witnesses. The MCA 2009 requires that “the opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under Article III of the Constitution.” However, the rules governing Guantánamo military commission practice require the defendant to share a synopsis of why the witness — lay or expert — is necessary to his case. For expert assistance requests, this reasoning is provided to the Convening Authority with notice to the other side, and for lay witnesses, this reasoning is provided directly to government trial counsel. There is no compulsory process in the military commissions.
The government agreed that the rules governing expert assistance were not consistent with the intent of Congress to make the rules governing military commissions more fair and to provide more rights to the defendant when it passed the MCA 2009. Therefore, the government agreed to allow a defendant the right to file ex parte a request for ex parte consideration by the Convening Authority for expert assistance, with de minimis notice to the government. This is mentioned nowhere in the rules. However, with regard to lay witnesses, the government insisted that the four corners of the rule be followed and that the defendant be required to submit a request for fact witnesses to the government with a synopsis of the witness’s expected testimony that is sufficient enough to establish to the trial counsel why the witness is necessary and relevant. Even the judge pointed out the hypocrisy of this argument compared to the concession the government made on expert assistance requests.
Not only is the witness request process completely contrary to the federal system, it is detrimental to the defense in a capital case. Such a rule could result in self-censorship by the members of the defense team. There may be witnesses or experts they want to use, but they see a procedure that requires disclose of trial strategies and this may give them pause. Hesitation to make a zealous and appropriate defense is not a trait to be supported in a capital case.
Over the course of seven days of commission sessions in both cases, over 30 motions were heard. The rundown above only skims the surface of the fundamental flaws with the Guantánamo military commissions. Issues involving access to learned counsel, waiver of presence of the defendants, appropriate attire of defendants, the health and safety of defense counsel’s working environment, discovery, and defense resources were also litigated. Following argument over the classification issue, Khalid Sheikh Mohammed asked to speak. After about two days of argument over what detainees’ can and cannot say in open court, Judge Pohl was still not sure what the proper procedure was for allowing Mohammed to speak. He deferred to a Department of Justice prosecutor who assured the judge that there was no need to worry. If Mohammed said anything that was determined to be classified, the 40-second delay would permit the use of the white noise button to make sure the world never heard him. There was no need to even have a hearing about whether or not the session should be closed. What could be more ad hoc than this?
Millions of dollars are being spent every year on a second-class system of justice that was designed to try only noncitizens, most of whom are Muslims, for retrofitted “war crimes” that appellate courts are beginning to question. The Guantánamo military commissions are not about justice. They are first about protecting secrets. The motions heard in October demonstrate this with little additional argument. We must stop trying to understand this system as some sort of hybrid court system, and instead understand it for what it really is: an illegitimate system designed to expediently convict and sentence those brought before it, but most of all designed to protect the shameful secrets of the U.S. government.