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January 09, 2023

Another Decade of Military Commissions

By: Gary D. Brown
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Ten years ago in 2012, things seemed to be looking up for the Military Commissions, often referred to by their detention and hearing location of Guantanamo Bay, Cuba. The Commissions were created pursuant to an order issued by President George W. Bush on November 13, 2001.

[Sec. 1.] (e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order … to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.

(f) Given the danger to the safety of the United States and the nature of international terrorism … it is not practicable to apply … the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts….

[Sec. 4.] (a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.

Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57831 (Nov. 16, 2001). Proceedings began in 2004, but, after an energetic start, the Commissions slowed and by 2011 seemed to have settled into an interminable delay. William Glaberson, Portable Halls of Justice Are Rising in Guantánamo, N.Y. Times, Oct. 14, 2007; Dafna Linzer, Review of Gitmo Detainees Has Been Slow and Complex, ProPublica, June 26, 2009.

By 2011, the Commissions had six capital cases, or cases in which the death penalty could be imposed for violations of the laws of war. Those cases charged six men: the “9/11 Five,” a group including Khalid Sheikh Mohammed, the most notorious of the detainees, and Abd al-Rahim al-Nashiri, the person alleged to have planned the October 2000 attack on the USS Cole that killed 17 sailors. Ed Pilkington, US Issues 9/11-Related Charges Against Six Guantanamo Detainees, The Guardian, Feb. 11, 2008; Peter Finn, Capital Charges Brought Against Guantanamo Detainee in USS Cole Attack, Wash. Post, Apr. 20, 2011; Associated Press, Khalid Sheikh Mohammed Charged in Guantánamo Over 9/11 Attacks, The Guardian, June 1, 2011. To some fanfare, a new Chief Prosecutor was named. See, e.g., Jack Goldsmith, Mark Martins to be Chief Prosecutor, Military Commissions, Lawfare, June 23, 2011. Swift and successful conclusions to the prosecutions seemed inevitable. Unfortunately, things did not go according to plan.

During the past decade, there have been only two convictions and both were guilty pleas. Although prosecutors have brought charges against 11 detainees since 2011, none of the cases has progressed beyond pretrial matters. Carol Rosenberg, Guantánamo Prosecutors Ask to Strike Information Gained From Torture, N.Y. Times, Jul. 17, 2021. The total number of convictions now is the same as it was a decade ago, as two older convictions were overturned during the time period. In the 18-year history of the Military Commissions, four convictions – all guilty pleas – have survived appeal and one is pending the exhaustion of appeals. Dropped Charges, Overturned Convictions, and Delayed Trials in Guantanamo Military Commissions, Human Rights First, Feb. 16, 2018; The Guantánamo Docket: Detainees at the Prison at Guantánamo Bay, N.Y. Times, Oct. 29, 2022.

Before discussing why it has been so difficult to advance cases through the Commissions, it might be helpful to examine the purpose for having military commissions at all. Military commissions provide a forum (other than a civilian criminal justice system) in which a party to an armed conflict may adjudicate cases of individuals accused of war crimes or violations of the law of armed conflict. Military commissions were used effectively after World War II, and that success animated the belief that a similar process could be employed to achieve similar results in the 21st century. Relying on the historical precedent, the Administration of President George W. Bush decided to use military commissions to try those involved with the terrorist attack of September 11, 2001. The initial structure set up for the Guantanamo Bay Military Commissions was invalidated by the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Congress corrected course with the Military Commissions Act of 2006, Pub. L. No. 109-366 (2006), which was amended in 2009. Military Commissions Act of 2009, Pub. L. 111-84, 123 Stat. 2574 (2009). By the time a system that could meet modern standards of American justice was in place, the delay had already undermined the proposition that military commissions could serve as a timely forum for justice in the 9/11 cases.

While the structure of the Guantanamo Military Commissions has been problematic, it has not been the only challenge. The actual conduct of the proceedings has been repeatedly plagued by missteps and poor execution. For example, there have been two investigations into surreptitious recording of conversations between detainees and their defense counsel. Peter Finn, At Guantanamo, Microphones Hidden in Attorney-Client Meeting Rooms, Wash. Post, Feb. 12, 2013; Charlie Savage, Guantánamo Lawyers Challenge Government's Explanation for Hidden Microphone, N.Y. Times, Mar. 12, 2018. As serious as such a breach would be in any case, it takes on additional importance for the Commissions because the two investigations involve the capital cases of Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri. Every issue in a capital case has the added importance of being the potential issue that either costs or saves an accused’s life. See, e.g., Furman v. Georgia, 408 U.S. 238, 286–89 (1972).

Capital cases are lengthy procedures under any circumstances, and the Guantanamo capital cases did not truly start until the prosecution completed the process of providing to the defense discovery of classified information in 2019, eight years after bringing the charges and 13 years after first detaining any of the current defendants at Guantanamo. The prosecution’s declaration that discovery was complete began the next preliminary phase of the proceedings, as the defense teams responded by moving for discovery of information beyond the classified summarized products prepared by the prosecution and approved for release by the intelligence community. Carol Rosenberg, The 9/11 Trial: Why Is It Taking So Long? N.Y. Times, Apr. 17, 2020.

Delays created more issues, which led to further delays. Defense counsel suffered health setbacks, were reassigned, resigned, and left cases for various reasons over the years. The loss of counsel, particularly lead counsel in a capital case, can be devastating to the defense and have the effect of stopping the proceedings. See, e.g., Katherine Hawkins, The Secret Ruling That Broke the Guantanamo Military Commissions, Just Security, Nov. 30, 2017; Carol Rosenberg, Judge Excuses 9/11 Defense Lawyer and Postpones Torture Testimony, N.Y. Times, Feb. 19, 2020; Carol Rosenberg, Amid Murky Investigation, Key Defense Lawyer Asks to Quit 9/11 Case, N.Y. Times, Mar. 10, 2022. The defense in a capital case requires at least one “learned counsel,” a term used to designate defense counsel with significant experience in the specialized area of capital litigation. See Appointment of Counsel & Role of Federal Defender, Federal Death Penalty Resource Counsel. Not only does the loss of learned counsel mean a loss of experience and continuity for the defense, but learned counsel are expensive and difficult to replace. Death-qualified defense counsel who are interested in an already long, drawn-out case that requires a security clearance to review highly classified material and frequent, inconvenient travel to Guantanamo Bay are uncommon. Furthermore, the time and attention required to defend one client in a capital case in the non-standard Commissions system likely renders the learned counsel unavailable for many other capital cases.

Judges qualified to preside in capital cases are also a rare commodity, particularly in the pool of military judges from which Commissions judges are drawn. Few courts-martial, or military criminal trials, are tried as capital cases, so there is little opportunity for military judges to gain the specialized experience. In the last 38 years, the prosecution has sought the death penalty in only 49 courts-martial. Facts and Figures, Death Penalty Information Center. As a result, the vast majority of military judges and counsel have never been involved in a capital case. Even when a military judge has gained capital experience with a Guantanamo case, that judge will not have the opportunity to continue to apply the experience once the judge is re-assigned or leaves the military. And because of the assignment cycle and opportunities to leave the military, a military judge is not assigned to the Commissions indefinitely.

In addition to issues of qualification, conflicts of interest have been a problem. In one case, the presiding judge was found to be disqualified because of his pursuit of post-military federal employment. As a result of the judge’s conflict of interest, which he failed to disclose to the parties, the District of Columbia Court of Appeals threw out the judge’s rulings from three-and-a-half years of presiding in the al-Nashiri case. In re Al-Nashiri, No. 18-1279 (D.C. Cir. 2019); Steve Vladeck, Al-Nashiri III: A No Good, Very Bad Day for US Military Commissions, Just Security, Apr. 16, 2019. The judge chosen as the replacement turned out to share the same conflict and so was replaced before acting in the case. Carol Rosenberg, New USS Cole Case Judge Quitting Military to Join Immigration Court, Pulitzer Center, Jan. 7, 2019. Of course, the transition to a new judge in a Commissions capital case is no easy matter. Each time a new judge is assigned to a case, she must review tens of thousands of pages of pretrial testimony, evidence, including classified information, and other case documents. She must become expert in the unique legal system of the Military Commissions and, if it is a capital case, knowledgeable about capital-case requirements before she can even begin to preside.

It has also been a challenge for the Commissions to hire and retain officials to serve as the Convening Authority. The Convening Authority is a senior position responsible for the funding and administration of the Commissions, part of neither the prosecution nor the defense. More significantly and substantively, “[t]he Convening Authority is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements, and review records of trial [as well as provide] accused an opportunity for clemency before taking action on the findings and sentence.” Organization Overview, U.S. Dep’t of Defense Office of Military Commissions. One Convening Authority, a well-known and respected expert in national security law was summarily dismissed in the midst of negotiating a guilty plea in a Commissions case for reasons that were litigated but never clearly established. Charlie Savage, Fired Pentagon Official Was Exploring Plea Deals for 9/11 Suspects at Guantánamo, N.Y. Times, Feb. 10, 2018; Jess Bravin & Andrew Restuccia, Alleged 9/11 Mastermind Open to Helping Victims' Lawsuit if US Spares Him Death Penalty, Wall St. J., Jul. 29, 2019. A subsequent Convening Authority was challenged and replaced as a result of a prior personal relationship with the Chief Prosecutor. M.E. Bultemeier, 9/11 Case: Military Commission Convening Authority to Be Called as a Witness as to His Own Bias, Just Security, Dec. 2, 2019; Ruling on Motion to Disqualify the Convening Authority, United States v. Mohammad, Military Comm’ns Trial Judiciary, AE 643AA (June 9, 2022).

As daunting as all the challenges set out above are, even more difficult is trying to dispel the shadow cast on the Military Commissions by the mistreatment of defendants while in U.S. custody. “Torture has hovered over the case since the beginning and will remain through its final days, whenever that may be.” John Ryan, Pretrial of the Century: The Sept. 11 Case at Guantanamo Bay, Lawdragon, Sep. 21, 2016. Several of the defendants in the Commissions cases were subjected to torture before their current detention as part of the Central Intelligence Agency’s “enhanced interrogation” program. Rep. of the S. Select Comm. on Intelligence, Comm. Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-288 (2014). The program seems to lie at the root of many of the Commissions’ problems, including the long delays for discovery and trial, the need for high-classification security clearances for personnel and secure facilities, the problematic monitoring of defense counsel conversations and court proceedings, and the conflict of interest and subsequent disqualification of some Commissions personnel. See, e.g., Ramzi Kassem, My Gitmo Client's Interpreter Worked for the CIA, Al Jazeera America, Feb. 13, 2015. The report on the program by the Senate Select Committee on Intelligence set out in graphic detail the brutal treatment of the now-defendants at the hands of the CIA. Rep. of the S. Select Comm. on Intelligence, Comm. Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-288 (2014). The torture described in the report merits consideration in the ongoing cases, continues to affect the proceedings, and will likely impact the ultimate resolutions of the cases.

In particular, the prosecution continues to search for ways to have admitted into evidence information that was obtained under torture. The prosecution is so committed to using this evidence that the Chief Prosecutor lauded in 2011 appears to have resigned prematurely in 2021 because the Biden Administration opposed his efforts. Carol Rosenberg, Chief Guantánamo Prosecutor Retiring Before Sept. 11 Trial Begins, N.Y. Times, Jul. 9, 2021. Meanwhile, defense arguments that sentences should be mitigated in light of the torture inflicted on the defendants are likely to receive a sympathetic hearing. Seven of the eight officers who served on the jury that sentenced Majid Khan signed a letter to the Convening Authority and condemned the defendant’s treatment while in U.S. custody, calling it a “stain on the moral fiber of America” and a “source of shame for the US government.” US Military Jurors Decry Guantanamo Detainee Torture, Al Jazeera, Nov. 1, 2021.

Given all that has gone before, it seems unlikely that any Commissions case will result in a capital sentence. Even if such a conclusion seemed more probable, there would be reason to consider other courses of action. With trial expenditures of about $100 million annually since 2011, the Guantanamo Military Commissions have cost over $1 billion. Harder to quantify but perhaps of longer lasting significance is the damage done to the international image of the United States. Human rights advocates have referred to Guantanamo Bay as a “disgraceful stain on the nation.” Hina Shamsi, 20 Years Later, Guantánamo Remains a Disgraceful Stain on Our Nation. It Needs to End, American Civil Liberties Union, Jan. 11, 2022; Factual Summary of Publicly Available Information on the U.S. Government’s Extraordinary Rendition, Secret Detention, and Interrogation Program and Djibouti’s Role in the Program, Bef. the Afr. Comm’n for Human & Peoples’ Rights, Communication No. 383/2010 (2011).

Despite all of these issues, some legal experts maintain that it is critical to finish the Military Commissions. They argue that stopping now could preclude the option later should the United States have a need for military commissions after a future conflict. See Law and Policy Workshop, The U.S. Military Commissions: Looking Forward 16 (May 2018). In the alternative, one could argue that, when military commissions fail to deliver fair and timely justice, they may validate the idea that vengeance, not justice, was the goal of the system.

Regardless of when and how the Commissions cases are resolved, it is unlikely the high-value detainees at Guantanamo will ever be allowed to leave. Id. at 45. Even if not sentenced, they will be detained for life under the presumption that they will constitute a threat to U.S. national security in perpetuity. So the efforts of hundreds of Commissions personnel, decades of waiting of victims’ families, and hundreds of millions of taxpayer dollars are all being spent to decide which defendants will spend the rest of their lives at Guantanamo and which, if any, will be executed years from now.

The irony is that, over the past two decades, the victim has become the oppressor. The United States was originally and rightly seen as the victim of the horrific attack of 9/11 but, as a result of the Military Commissions and other actions associated with Guantanamo Bay, is now seen by much of the world as a perpetrator of torture and a lawbreaker with little regard for justice or human rights. The detained terrorists have become the perceived victims. International Comm’n of Jurists, Submission for the UN Universal Periodic Review of the United States (Oct. 3, 2019); Letta Tayler & Elisa Epstein, Legacy of the “Dark Side”, Human Rights Watch, Jan. 9, 2022. Meanwhile, the Commissions have failed to provide closure to those who lost loved ones on 9/11 and have failed to provide justice to those who were responsible for the attack. The United States has also failed in the Commissions to demonstrate that we can effectively and efficiently use military commissions to adjudicate violations of the law of armed conflict. It is time to end the Commissions.

On a more hopeful note, it seems there may finally be a recognition inside the U.S. government that enough is enough. As of November 2022, there is again the possibility of negotiating guilty pleas that would take capital punishment off the table, the course of action previously pursued by the Convening Authority fired in 2018. Carol Rosenberg, Sept. 11 Case Awaits Biden Administration’s Reply on Plea Deal, N.Y. Times, Oct. 23, 2022. Such case resolutions would undoubtedly be lauded by some and condemned by others, but at least they would finally conclude the 20 year-plus search for justice that has been the Military Commissions at Guantanamo Bay.

Disclaimer: The views presented in this article are those of the author and do not necessarily represent the views of the Department of Defense, National Defense University, or its components.

Gary D. Brown

Professor, Eisenhower School for National Security & Resource Strategy, National Defense University

Gary Brown serves as a Professor at the Eisenhower School for National Security & Resource Strategy, National Defense University. Previously, he worked for the Department of Defense, Marine Corps University, and the International Committee of the Red Cross. He served 24 years as a judge advocate with the U.S. Air Force.

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The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.