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Guantánamo: Military Commissions and the Illusion of Justice

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When something is irredeemably broken, the sensible course of action is to get rid of it. However, when it comes to military trials for terror suspects in the Bush administration’s “war on terror,” however broken the system is, government officials and lawmakers have repeatedly gathered round to put it back together again, and continue to do so, even though, in nearly ten years, the commissions have resulted in just two trials, and four other cases that have ended with plea deals.

The military commissions, which were last used on Nazi saboteurs in World War II, were brought back from the dead by Vice President Dick Cheney almost ten years ago — in an alarming military order dated November 13, 2001 — as a means of swiftly trying and executing terror suspects seized in the “war on terror” without the impediment of due process or a ban on evidence derived through the use of torture.

Ruled illegal by the Supreme Court in June 2006, the commissions were then resuscitated by Congress. Although Barack Obama froze them temporarily when he took office, he soon thawed them out again, even though the wisest of his advisors recommended that he not do it, because the primary charges in the commissions — conspiracy and providing material support to terrorism, for example — were appropriate crimes to be tried in federal courts, but had only been invented as war crimes by Congress.

Reviving the commissions left Obama with a two-tier system of justice for those held at Guantánamo, with both federal court trials and military commissions on the table. It also led him into unseen difficulties after he announced in November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, and those who opposed his plan struck back.

Because of Obama’s refusal to consign the commissions to a legal grave, his critics could point to them as a viable alternative to a federal court trial, especially as the administration, when announcing the 9/11 trial, had also announced that five other Guantánamo prisoners would be tried by military commission.

As a result, Obama’s critics in Congress ultimately succeeded in passing legislation preventing any Guantánamo prisoners from being brought to the U.S. mainland for any reason (even to face a federal court trial) and have now embarked on their most audacious and inappropriate measure yet: threatening to pass legislation making it mandatory for any foreign terror suspect to be held in military custody rather than be tried in federal court for the crime of terrorism.

Ten years after 9/11, it is truly depressing that the misguided “war on terror” not only lives on, but may get a new lease of life, and that at Guantánamo, where part of this struggle to keep Cheney’s malevolent dreams alive is particularly focused, the authorities are gearing up for new activity.

Last week, in an attempt to market what the Miami Herald described as “a new era of transparency” at Guantánamo, Army Brig. Gen. Mark Martins, the new chief prosecutor of the military commissions, told the Weekly Standard that the commissions will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.” The Herald added that the transmissions “won’t be live because the feeds will be broadcast on a ‘40-second delay to ensure safeguarding of national security information.’”

In the Miami Herald article, Carol Rosenberg, who has been following the military commissions since they were newly revived, called the proposed new system “vastly different” from what has been in place to date, whereby “reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights,” and then “faced strict limitations on where they could go and what they could report,” which “helped cut the number of news organizations covering events there.”

The changes, if implemented, will certainly increase transparency, and that is to be commended, but huge and, I believe, insurmountable problems remain for the commissions.

Chief among them is how transparency can be balanced with what remains an obsessive need for secrecy on the part of the government. Having decided not even to investigate the Bush administration’s official torture program (despite the requirement to do so under the terms of the U.N. Convention Against Torture and America’s own domestic torture statute), the Obama administration will be obliged to continue making sure that, when trying those who have been tortured, discussion of the time they spent in secret CIA prisons, where the use of torture was widespread, is severely limited.

As Rosenberg noted, “The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings.” Those requirements also protect “the identities of CIA agents and contractors who carried out interrogations.”

This is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, whose case was officially referred for trial by military commission by the commissions’ Convening Authority, Retired Adm. Bruce MacDonald, this past Wednesday, in what were the first capital charges put forward for trial in the commissions.

The problem for the government is that al-Nashiri was, notoriously, one of three “high-value detainees” waterboarded by the CIA. In a report on the referral to trial in the Washington Post, it was noted, coyly, that “waterboarding was sanctioned by Justice Department lawyers,” when what should have been noted was that Justice Department lawyers — John Yoo and Jay S. Bybee — claimed to approve its use, even though there are no grounds whatsoever for lawyers to attempt to justify the use of torture.

There are further complications. As the CIA Inspector General concluded in a report on detainee treatment in 2004, al-Nashiri was also threatened with mock executions when CIA operatives held a power drill and a gun to his head while he was hooded and naked in a secret prison in Thailand — actions that exceeded the guidelines laid down by Yoo and Bybee — and his lawyers argued in submissions to the Convening Authority that no case should be brought against their client because of his torture, because of the delay in his case, and because of the destruction of evidence. Videotapes of his being waterboarded were among the tapes destroyed by the CIA, in spite of a court order demanding that they be preserved, and his lawyers argued that the destruction of the tapes deprives the defense team of important and potentially exculpatory evidence.

In addition, although the government, in the Post’s words, “cannot use any statements obtained under torture,” and “prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody,” one of his lawyers, Navy Lt. Cmdr. Stephen Reyes, stated that he intended to summon the CIA operatives involved in his client’s interrogation to the trial.

In the submission, his lawyers stated, “The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”

Further afield, the European Parliament submitted a declaration in June stating that al-Nashiri should not be subject to the death penalty because of his treatment by the CIA, and human-rights groups have also spoken out against the plans. In addition, al-Nashiri’s treatment in a secret CIA prison in Poland, where he was sent after his ordeal in Thailand between November and early December 2002, is regarded as so severe that, although there has been no official acknowledgement that a secret prison existed in Poland (by either the U.S. or the Polish governments), the Polish prosecutor investigating his case was alarmed by documents to which, evidently, he had access and he officially designated al-Nashiri — and Abu Zubaydah, another tortured “high-value detainee” — as a “victim.”

One last problem with the commissions was inadvertently revealed in the Weekly Standard article when the Pentagon’s general counsel, Jeh Johnson, said that General Martins was “a recognized superstar” who, as the Miami Herald put it, “would focus not on getting the most convictions but on making the war court credible and sustainable.” This is the same Jeh Johnson who, in testimony before the Senate Armed Services Committee in July 2009, when the revival of the commissions was being discussed, urged the committee to drop the charge of material support, because the administration believed that it would be overturned on appeal, as it was “not a traditional violation of the law of war” — and, as mentioned above, was invented by Congress.

Al-Nashiri does not face a material-support charge, but the charges he does face include conspiracy and murder in violation of the laws of war. The latter charge also has a nonexistent history as a war crime, having also been dreamt up by Congress when the military commissions were first revived after the Supreme Court ruled them illegal in 2006.

As al-Nashiri’s case finally proceeds to trial, all but the most blinkered enthusiasts for the commissions should be deeply troubled that, despite amendments, a system dedicated to evading all mention of torture in the case of a tortured man is going ahead with barely a murmur of dissent, even though this deeply flawed system contains invented war crimes intended to turn a crime (terrorism) or engagement in warfare into violations of the laws of war, when they are no such thing.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.