On November 13, 2001, the president signed a military order creating military commissions to try members of al-Qaeda or other individuals who "engaged in, aided or abetted, or conspired to commit, acts of international terrorism..." and ordered that such persons be "detained at an appropriate location designated by the Secretary of Defense outside or within the United States." Shortly thereafter, the U.S. Naval Station at Guantanamo Bay, Cuba, began receiving large numbers of detainees and constructed detention and courtroom facilities for the anticipated trials.
Within months, the ABA House of Delegates overwhelmingly approved a resolution calling for any such trials to be conducted under the Uniform Code of Military Justice, providing detainees with the full rights afforded in courts-martial. After all, as the White House Counsel Alberto Gonzales had written in a New York Times op-ed, the "American military justice system is the finest in the world."
The resolution also urged that persons subject to the military order not be subjected to indefinite pretrial detention and that the proceedings comply with relevant trial provisions of the International Covenant on Civil and Political Rights (to which the United States is a party), including representation by counsel of choice, adequate time and facilities to prepare the defense, at the prohibition of ex post facto application of law, and an independent and impartial tribunal.
Unfortunately, the commission rules, drafted by the civilian leadership of the Defense Department, bore little resemblance to those of our respected military justice system and fell far short of meeting our international treaty obligations. Instead, a very different, badly flawed system was created that has been mired ever since in chaos, confusions, and criticism. Now, four and a half years later, only ten of the almost 500 remaining Guantanamo detainees have been formally charges, and not one case has proceeded beyond initial appearances and preliminary motions.
I was seated in the specially built courtroom in Guantanamo as the ABA's official observer when the first military commission hearings were convened in August 2004. My observations then, and at more recent hearings, have convinced me that the system not only is inherently defective and unworkable but also denies basic due process protections that have been a hallmark of out military justice system. Among the many problems:
- Rules have been made up on the fly. At least one presiding officer recently acknowledged that he isn't sure which body of laws - military, criminal, or laws of war - he will follow in making rulings on motions and objections. One exasperated military defense lawyer recently told a presiding officer, "There is an incredible burden just to do my jo b... There are no rules here."
- Resources have been seriously skewed in favor of the prosecution, which has had far more lawyers, paralegals, and support staff than the defense. Although the imbalance has been ameliorated somewhat this spring, defense resources still lag far behind.
- Almost all of the discovery documents turned over to the defense have been labeled as "classified," "sensitive," or "for official use only," thus prohibiting defense lawyers from discussing the evidence with their clients and frustrating lawyers' ability to prepare defenses. Moreover, the rules allow closing of commission sessions and exclusion of the accused from the courtroom if classified evidence is introduced at hearings or trials, even though defendants would have the right to be present under the rules of courts-martial.
- Rules that prohibit self-representation and bar non-U.S. citizen lawyers from appearing as counsel have stalled some proceedings for years. Although all detainees are assigned military counsel, at least one detainee has rejected the military lawyers detailed to represent him because, he says, he cannot trust lawyers who wear the same uniforms as his captors, jailers, prosecutors, judges, and jurors. He has invoked instead the right to represent himself or to have the assistance of a lawyer from his home country. Although the defense, the prosecution, and several amici all have argued that almost every other court on earth allows self-representation, and although the ABA House of Delegates recommended in 2003 that the government "permit non-U.S. citizen lawyers with appropriate qualifications to participate in defense," the Defense Department thus far has refused to consider changing its rules.
- The Standard of admissibility of evidence, "probative value to a reasonable person," is impossibly broad and would allow almost any kind of evidence, regardless of how obtained or how unreliable. As the government has acknowledged, even evidence derived from torture would have been fair game until, following sharp criticism from the ABA and others, a new rule barring such evidence was issued on March 24, 2006.
- Many of the commission-provided interpreters have proven to be untrained or unskilled. According to defense interpreters and observers fluent in Arabic, commission translations have been riddled with errors. In one case, the commission did not even provide a detainee with his charge sheet in his native language, Farsi.
Despite such problems, there are some reasons to be encouraged. Military lawyers on both sides have acted with exemplary dedication, talent, and zeal, and the presiding officers and other commission personnel clearly are trying to do the right thing. Counsel for Salim Ahmed Hamdan has pursued his client's case all the way to the U.S. Supreme Court, which is poised to rule by this summer on issues the case presents, including the validity of the commissions and the availability of judicial review under the recently passed Detainee Treatment Act of 2005.
Meanwhile, some rule changes, adopted as a result of pressure from the ABA and others, have improved the process. The original structure, under which the presiding officer (the only lawyer) also served on the jury, has been replaced with a more traditional judge-jury system. The government's withdrawal of a rule requiring civilian lawyers to agree that conversations with their clients could be monitored has eliminated a serious barrier to the lawyers' ethical participation in trials
But the system remains badly broken and unfair. Even some former military prosecutors have complained, in internal e-mails leaked to The New York Times, that the system had been "rigged" to improve the odds of conviction by depriving defendants of material that could prove their innocence.
Had our government simply adopted the courts-martial framework at the outset, it might have avoided the international scorn from some of our closest allies, including members of the British Parliament who called the process a "charade of justice," and Lord Steyn, one of the most senior judges on Britain's highest court, who described the commissions as a "kangaroo court" and "a monstrous failure of justice."
It is not too late to salvage the process and create a military commission system worthy of our democratic ideals. But until substantial changes are made and until real, meaningful due process is provided to the charged detainees, Sen. Patrick Leahy's (D-VT) description of Guantanamo as a "legal black hole" remains agonizingly accurate.
As published in Human Rights, Winter 2006, Volume 33, Number 1, pp.8-9.