The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try.David Frakt was the military attorney for Guantanamo prisoners Mohamed Jawad and Ali Hamza al-Bahlul. He is also a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.
If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% 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.
In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000.
But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war.
In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].
If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law.
The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.
Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates, the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative.
The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years.
Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.
The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.
The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration.
We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.
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