Oh, Those Crazy Commissions

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Posted in: Human Rights

In keeping with their true purpose in American life, we do not hear much nowadays about the military commissions operating at Guantanamo. Only a few reporters still write about them, and their stories, typically buried deep in the first section, always seem to convey the same message: “Still More Chaos in the Military Commissions.” And just when you think the chaos cannot continue, it does.

Last Friday, Brig. Gen. John Baker, the Chief Defense Counsel for the military commissions, disbanded the entire defense team for Abd al Rahim al Nashiri, who is charged in connection with the attack on the USS Cole. Because much of the proceedings are classified, we cannot know exactly why Baker felt the need to act as he did. Public reporting, however, placed the blame on surreptitious monitoring by the government of privileged conversations between al Nashiri and his lawyers. It seems the United States may have been eavesdropping on private conversations between al Nashiri and his lawyers, and could not assure anyone that the practice had ended. (I put the matter this way because there is a dispute about whether attorney-client conversations were deliberately monitored. Because the whole imbroglio is classified, we cannot know who has the better of the argument.)

This, of course, is bad enough, but the government made it far worse by forbidding the lawyers from telling al Nashiri about the eavesdropping. In reasoning fit for Lewis Carroll, the military says the fact that it may have secretly monitored privileged attorney-client communications was itself classified. Since al Nashiri does not have a security clearance, the lawyers could not tell him whether his conversations with them may have been compromised. Nor could they assure him that their conversations with him going forward would be protected. This, of course, put the lawyers in an impossible bind. They could not have a private conversation with their client, and so were reduced to discussing trivialities. Yet they could not explain to their client, who faces a possible death sentence if convicted, why they would travel all the way to Cuba just to chat about the weather.

Call me old fashioned, but I had always thought by “defense counsel” we meant a lawyer who—hmm, how do we say it?—defended the person accused of a crime. The military, however, has made that impossible. Rather than maintain the charade, Brig. Gen. Baker disbanded the defense team. At least there’s one adult in the room.

If his trial had gone forward, al Nashiri would have been the first person to face capital charges in the Guantanamo military commission system. Now, of course, new counsel must be appointed, which means the entire proceeding is in limbo. In a real court, replacing counsel in a capital case and giving them time to come up to speed would delay the case by months, if not years. In a case as complicated as the Cole bombing, involving classified investigations across the globe, the delay will almost certainly be measured in years. But in any case, even if new lawyers could be identified, and even if they were given enough time to prepare, they would labor under the same burden as the previous lawyers. If the problem is that the military has made it impossible to defend al Nashiri, bringing in a new set of lawyers won’t make it better.

The entire al Nashiri mashup, as ludicrous as it seems, is perfectly ordinary for the commissions. Since it opened in February 2002, 780 people have been brought to our remote Cuban outpost. Only eight have been tried and convicted in the commission system—one fewer than the number of Guantanamo prisoners who have died in custody (including six who killed themselves), and one more than the number of military prosecutors who resigned from the commission system because they believed the process was unfair. And even this total overstates the success of the quasi-courts, since three convictions were reversed on appeal. Only one of the eight convictions involved a contested trial. Six others were pursuant to a plea, and one defendant boycotted the proceedings. Looking to the future, seven prisoners are currently being tried in the commission system. The Pentagon reports it has plans to prosecute 14 prisoners in total. Whether these trials will go forward is anyone’s guess, but the odds are not good. Meanwhile, the United States has successfully prosecuted more than 600 terrorists in federal court since 9/11, including one who had previously been detained at Guantanamo.

For those keeping score at home, the commissions cost taxpayers more than $90 million a year. And yet we retain them and show no inclination to bring them to a merciful end. Why? Because their true purpose—their reason for being—has nothing to do with whether they can dispense something like justice in something like a court pursuant to something like the rule of law. They exist because many Democrats, and especially President Obama, wanted to end them. They exist because the rest of the western world despises them. They exist because they symbolize a muscular indifference to the effete whimpering of left-leaning intellectuals. They exist because they serve a partisan political function that has nothing to do with the law, and nothing to do with whether any proceeding is ever brought to a successful conclusion. We do not hear about them because it is not important that they do anything. It is only important that they continue to exist. Given their nearly unbroken record of futility and failure, the conclusion is irresistible that the commissions are all symbol and no substance. But woe unto any politician who suggests they be shuttered.

And to think, military commissions started with such fanfare, such hype. Once upon a time, President Bush said they were “necessary” to meet the “urgent and compelling” threat posed by transnational terror. Umm, not so much. Military commissions are the Republican draft pick that management swore would save the franchise but got cut before the first snap. Except they weren’t cut. Today, Republicans would rather pay $90 million a year to keep commissions on the bench, unused and ignored. If Trump really wanted to drain the swamp, he would start in Cuba. And you wonder why people are sick of government.

  • I am sure that not everything is wright with our military in the background, although how would these people be dealt with in WWII? This war is on terrorism not against a country as they do not have a country. Waring persons outside of their country without or out of uniform are treated HOW? Not anymore we would rather release them as have been done in the last administration and latter find out they have gone back to terrorism and killing not only military personnel but have been involved in bombings against civilians in areas where they know there is no military presence. I wonder how the Law Professor would feel if his son or daughter were killed of disfigured by such a person?
    It may be in order to hold them all at Guantanamo Bay facility until after it is all over and convene a council similar to the trials in Nuremberg.

  • jeffkaye

    Mr. Margulies, I respect tremendously the work you and other Guantanamo defense attorneys have done. I believe few people could understand the kinds of pressures you and the other attorneys operate under, the tremendous frustrations up against even more tremendous odds. However, I do take issue with two comments you made, mostl in passing.

    You mentioned the six Guantanamo suicides. As you may or may not know, I’ve spent years gathering FOIA documents in some of those cases, and the ones I examined show there is plenty of reason to question the verdict of suicide in most or all of those cases. I don’t doubt that suicide occurred, but it also seems the suicides were likely facilitated by Guantanamo guard and/or medical staff. Facilitated suicide involving medical or guard personnel is a form of homicide. In at least one case, there may have been no suicide at all, but possibly murder (the case of Abdul Rahman al Amri), and former guard Joe Hickman argues the deaths of three detainees in 2006 took place in some mysterious fashion at a CIA black site at Guantanamo, and not as reported by Guantanamo authorities.

    Secondly, you say that former President Obama was wanted to end the military commissions. But what he may have subjectively wished and what he did were two separate things. In fact, the Obama administration unveiled their own version of the military commissions in 2009. In 2011, Obama lifted a freeze on any new trials via the military commissions. I know he and his attorney general believed trial in civil courts were better, but he must bear responsibility for the continuation of the commissions themselves, and the insane rules under which they still operate.