Surprise is the last thing that anyone ought to feel on hearing the news that the Obama administration “has shelved the planned prosecution,” in a trial by military commission, “of Abd al-Rahim al-Nashiri, the alleged coordinator of the October 2000 suicide attack on the USS Cole in Yemen,” as the Washington Post reported on Thursday, or that senior officials are “alarmed” by negative responses to the trial by military commission of Omar Khadr, as the New York Times reported on Friday.
The problem in both cases is that trials by military commission are inappropriate for any of the prisoners held at Guantánamo, who are either accused of terrorist activities, and should be tried as criminals in the federal court system, or are soldiers seized in connection with their support of the Taliban, wrongly imprisoned in an experimental prison established to permit coercive interrogations, instead of being held in a prisoner of war camp in accordance with the Geneva Conventions.
The commissions — dragged from the bowels of history in November 2001 by Dick Cheney — looked appropriate to the former vice president and to President George W. Bush, because they, like Guantánamo, appeared to be beyond the reach of the U.S. courts and, therefore, would allow prisoners to be executed after largely perfunctory trials using evidence obtained through torture.
One reason for seeking to avoid court interference was that senior Bush administration officials were aware that their “war on terror,” which equated al-Qaeda with the Taliban and failed to distinguish between terrorists and soldiers, regarding everyone who ended up in U.S. custody as “enemy combatants” or “high-value detainees,” was legally unprecedented, and would be subjected to rigorous challenges.
To the Bush administration, such interference was unacceptable, but time and again administration officials were proved wrong, as the Supreme Court found in favor of the prisoners, ruling that they had habeas corpus rights in June 2004, ruling that the military commissions violated both the Geneva Conventions and the Uniform Code of Military Justice in June 2006, and, after unconstitutional interventions by Congress, reiterating that the prisoners had habeas corpus rights in June 2008.
In the cases of the men held as part of the general population at Guantánamo, the Supreme Court’s rulings destroyed the Bush administration’s claim that, in the “new paradigm” of the “war on terror,” men could be held forever without being able to ask a judge if there was any basis for their detention, if, as in many cases, they claimed that they had been seized by mistake. As has become apparent in the last two years, when the prisoners’ habeas petitions have proceeded to federal district court in Washington D.C., there are so many fundamental problems with the prisoners’ detention — primarily involving torture and unacceptable levels of hearsay. masquerading as evidence — that in 38 out of 53 cases so far decided, the prisoners have won their petitions.
The Obama administration has failed to understand quite how ruinous these rulings are for the detention authority inherited from President Bush. Although senior officials have publicly repudiated Bush’s reliance on claims of seemingly unfettered power exercised as the commander-in-chief during wartime, Obama has continued to rely on the Authorization for Use of Military Force (AUMF), passed by Congress the week after the 9/11 attacks, which, with another Supreme Court ruling from June 2004 (Hamdi v. Rumsfeld) allows the government to detain anyone it regards as having supported al-Qaeda, the Taliban, or related forces.
This has led to horrendous problems, as I have reported at length, because, in the first instance, the majority of those who have lost their habeas petitions were nothing more than foot soldiers for the Taliban, who should have been held as prisoners of war, and secondly, because the president is also relying on the AUMF to justify his plan to continue holding 48 of the remaining 176 prisoners without charge or trial, on the basis that “prosecution is not feasible in either federal court or a military commission.”
The well-chronicled failures of the military commissions
This is a fundamental error that has still not been adequately addressed, but when it comes to the military commissions, the failures of the system have been far more thoroughly aired, and the Obama administration had no excuse for working with Congress to revive them last summer. In congressional testimony at the time, a number of knowledgeable critics of the commissions, including retired Adm. John Hutson and Lt. Col. Darrel Vandeveld, a former prosecutor, explained why reviving the commissions was a bad idea, but the most compelling testimony was delivered by Lt. Col. David Frakt, the military defense attorney for two Guantánamo prisoners, Mohamed Jawad (released last August) and Ali Hamza al-Bahlul. (who received a life sentence after a one-sided trial by military commission in October 2008, in which he refused to mount a defense).
In a comprehensive dissection of the failures of the original military commissions, Lt. Col. Frakt stated:
[T]he drafters [of the original military commission rules (PDF)] classified as “war crimes” conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict.
They also created a number of “new” war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war [PDF]. The most egregious examples of these were the invented crimes “Murder by an Unprivileged Belligerent” and “Destruction of Property by an Unprivileged Belligerent,” which appeared in the original commission’s list of offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the U.S. declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.
Noticeably, Lt. Col. Frakt found little improvement in the revised version of the commissions introduced by Congress in the fall of 2006, after the Supreme Court ruled that Cheney’s version was illegal. As he stated, Congress “retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all ‘material support to terrorism.’” He added:
If one were to review the charges brought against all of the approximately 25 defendants charged [under President Bush] in the military commissions, as I have, one would conclude that 99 percent of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism, and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.
Alarmingly, senior officials in the Obama administration recognized that providing material support to terrorism should not be included in the revised version of the military commissions that was approved last summer. In congressional testimony, Assistant Attorney General David Kris conceded (PDF) that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy,” and the Pentagon’s General Counsel Jeh Johnson also accepted (PDF) that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”
However, Congress chose to ignore even the government’s appeals, and on November 13 last year, Attorney General Eric Holder announced that five men previously put forward for trial by military commission under President Bush — Omar Khadr, Abd al-Rahim al-Nashiri, Ibrahim al-Qosi, Ahmed al-Darbi and Noor Uthman Muhammed — would face what was the United States’ second or third attempt to secure convictions through trials by military commission.
Reprehensible excuses for proceeding with the trial of Omar Khadr
As a result, it was somewhat disingenuous of the administration to bleat to the New York Times, via anonymous officials, that the first full trial under the revamped system, that of Omar Khadr, was “undermining their broader effort to showcase reforms that they say have made military commissions fair and just.”
International and domestic concerns about proposals to put Khadr forward for a war crimes trial have been voiced since he was first put forward for a trial in November 2005, primarily because the Canadian citizen was just 15 when he was seized after a firefight in Afghanistan in July 2002, but also because of widespread recognition that a line had been crossed by the government in claiming that his alleged crime — throwing a grenade that killed a U.S. soldier — was a war crime.
Given that the Obama administration chose to ignore both of these criticisms in proceeding with Khadr’s trial, the complaint aired to the Times by anonymous officials — that “No one intended the Khadr case to be the first trial under the revamped system,” as Charlie Savage described it — is frankly reprehensive, as it involves the explicit recognition that the entire trial is unacceptable, and would only be acceptable if it could have been hidden behind the coat tails of a more prominent case — one, for example, that involved recognizable allegations of terrorism.
Attempts to mitigate this uncomfortable truth were also made by the officials who spoke to the Times, but largely without success. The officials explained that they were unsure if offering a new plea deal to Khadr to stop his trial from taking place would constitute “unlawful command influence,” which is prohibited in the commissions’ rules. Khadr had previously been offered a plea deal, which he refused, and as Charlie Savage explained, “Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations,” or even whether they could direct Vice Adm. Bruce MacDonald (the Commissions’ convening authority, who is responsible for approving all charges and sentences) to “make a more attractive offer.”
What worried them, they explained, was the prohibition on “unlawful command influence” — defined as any attempt “to coerce, or, by any unauthorized means, influence” the actions of prosecutors or the convening authority. Charlie Savage added, “Officials are debating what that means,” but this purported reticence was disputed by Col. Morris Davis, the commissions’ former chief prosecutor, who suggested the provision to lawmakers in 2006. Col. Davis resigned in October 2007 after he was placed in chain of command under the Pentagon’s General Counsel William J. Haynes II, who aimed to use information derived through the use of torture, against Col. Davis’ own refusal to countenance the use of such material, and he told the Times that he “believe[d] the provision was not meant to bar pressure to sweeten a plea offer,” telling Charlie Savage, “It’s clearly not ‘command influence’ to do something favorable to the accused. The whole concept was the opposite of that.”
Paralysis in the case of Abd al-Rahim al-Nashiri
Ironically, at the same time that these poor excuses were being made in Omar Khadr’s case, the Washington Post revealed that, in the case of a genuine terrorist suspect, Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in October 2000, “no charges are either pending or contemplated with respect to al-Nashiri in the near future.” As the Post explained, “The statement, tucked into a motion to dismiss a petition by Nashiri’s attorneys, suggests that the prospect of further military trials for detainees held at Guantánamo Bay, Cuba, has all but ground to a halt.”
Although the Pentagon disputed the statement, claiming that “Prosecutors in the Office of Military commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him,” and the Post spoke to military officials who said that “a team of prosecutors in the Nashiri case has been ready go to trial for some time,” one military official seemed to cut through this waffle by stating, “It’s politics at this point.” As the Post described it, “He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantánamo Bay.”
This was a reference to Khalid Sheikh Mohammed and four other “high-value detainees” accused of involvement in the 9/11 attacks, whose proposed federal court trials were announced on the same day last November that Eric Holder announced the resumption of trials by military commission against Omar Khadr, Abd al-Rahim al-Nashiri and the three others mentioned above. At the time, critical attention focused on the three-tier justice system that Holder’s announcement enshrined, with federal court trials for some prisoners, trials by military commission for others, and, as the administration also conceded, indefinite detention without charge or trial for others.
This was rightly lambasted as a travesty of justice, which involved different processes depending on what the administration had gauged to be its level of potential success, and it was not offset by Eric Holder’s claim that, in al-Nashiri’s case, for, example, “With regard to the Cole bombing, that was an attack on a United States warship, and that, I think, is appropriately placed into the military commission setting.” As last week’s Post article made clear, it was more probable that a military commission was chosen for al-Nashiri because the prosecution was “expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri,” and who, unlike in federal court, would not be required to testify, and also, of course, because, as one of three “high-value detainees” subjected to waterboarding — and threatened with a gun and a power drill — al-Nashiri’s own statements would probably be inadmissible as evidence.
Ten months on, however, with federal court trials for the alleged 9/11 co-conspirators still in doubt, after a successful backlash that has thrown the administration into paralysis, and with the latest news about the commissions indicating that they too have “all but ground to a halt,” it is, sadly, clear that the word “paralysis” now defines the Obama administration’s overall response to Guantánamo.
Of the remaining 176 prisoners, only 35, at present, are destined for new homes, after being cleared for release by President Obama’s interagency Guantánamo Review Task Force, and the rest — 58 Yemenis also cleared for release, but still held because of President Obama’s January moratorium on releasing any more Yemenis, the 35 prisoners supposedly scheduled to face trials, and the 48 designated for indefinite detention without charge or trial — are stuck in a limbo of political paralysis that is unlikely to be lifted before the mid-term elections, and that may be impossible to remedy after the elections if the balance of power in Congress shifts away from the Democrats.
Political maneuvering and pragmatism has played a major role in this, as has unprincipled scaremongering from Republicans and members of Obama’s own party, but the result — no trials, few releases and that dominant mood of paralysis — is a poor reflection on the administration, on lawmakers of both parties, and of America in general, because the failure to bring genuine terrorist suspects to justice, to release prisoners who do not constitute a threat, and to close Guantánamo once and for all is nothing to celebrate.