The Scourge of Military Commissions

How the George W. Bush administration undermined American rule of law.

Of all the self-inflicted wounds by the United States since 9/11, the flawed military commissions set up to try suspected foreign terrorists rank high on the list. At Guantanamo, the commissions have been bogged down in a swamp of dubious ethical, legal, and procedural practices. Their constitutionality has been challenged, their partial secrecy denounced.

Some of their military judges have demonstrated bias, and one was reprimanded in April by the powerful Court of Appeals for the D.C. Circuit, which vacated all his orders back to Nov. 19, 2015, the date he initiated a conflict of interest by applying to the Justice Department to be an immigration judge. All rulings on his orders by the Court of Military Commission Review were also set aside, wiping the slate almost clean of pretrial decisions in the case, now requiring re-argument on many of the issues. It was a telling illustration of the mess that’s been created.

Without the military commissions, it’s a good bet that the most prominent prisoners at Guantanamo would have been executed years ago, or at least be sitting on death row waiting for the needle. They would have been tried in civilian federal courts, which Republicans have blocked, although the courts are the jewel in the crown of the American judicial system. If juries had found them guilty, it’s hard to imagine anything but the death penalty. Instead, the alleged organizers of the 9/11 attacks and the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more than 15 years, at taxpayers’ expense, waiting for trial by military commissions that are so ill-conceived as to be vulnerable to obstruction by prosecutors and multiple motions by defense attorneys seeking to guard their clients’ rights.

Among five suspects in the 9/11 plot is the alleged mastermind, Khalid Sheikh Mohammed. Last April’s appeals-court ruling involved Abd al Rahim Al-Nashiri, charged with orchestrating the Cole bombing. Both men were tortured by the CIA in “black sites” before being transferred to Guantanamo.

Al-Nashiri was granted a Writ of Mandamus, which he sought after his lawyers learned that the former judge in his case, Air Force Colonel Vance Spath, had been secretly promoting himself for a position with the Justice Department’s Executive Office for Immigration Review. He had even cited his role in the Al-Nashiri case as a credential, and had submitted one of his pretrial orders as a writing sample. (Immigration judges are employees of the Justice Department, not part of the independent judiciary. And while the military commissions are run by the Defense Department, the Justice Department is involved in rule-making and appeals; a Justice Department lawyer played a major role in the team prosecuting Al-Nashiri.)

The decision of the three-judge panel was unanimous. Written by Judge David Tatel, the opinion  stopped short of citing any evidence of actual bias in Spath’s orders—many of which were adverse to the defendant—but it noted that “jurists must avoid even the appearance of partiality. Judge Spath’s conduct falls squarely on the impermissible side of the line.” The opinion continued: “It is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.”

To a layman’s eye, some of Spath’s rulings seemed to fit that pattern. One instance came after defense attorneys were warned by their officer in charge, Marine Brig. Gen. John Baker, “that he had lost confidence in the confidentiality of Guantanamo’s meeting spaces,” according to Tatel’s opinion. But Spath adamantly denied that any cause for concern existed that privileged consultations between Al-Nashiri and his lawyers were being monitored. He denied the defense’s motion for discovery, even after lawyers found a hidden microphone, which the government claimed was inoperative.

When the three of Al-Nashiri’s lawyers, who were civilian employees of the Defense Department, concluded that professional ethics required them to withdraw from the case, General Baker granted their request. Spath ordered Baker to rescind his decision. Baker refused, so Spath ordered the general fined $1000 and confined to his quarters for 21 days.

Last September, after retiring from the Air Force, Spath took the oath as an immigration judge, where he is making life-changing decisions for immigrants. His successor on the case, Colonel Shelly Schools, then followed the same route, seeking and accepting an immigration judgeship. When the defense got wind of it, and the government confirmed it, she had to step down as well.

Military involvement in the terrorism cases began when President George W. Bush, ignoring the legislative branch, established tribunals to process Guantanamo detainees and others. For several years, he dodged and weaved in and out of a series of adverse Supreme Court rulings, finally enlisting a too-compliant Congress in 2005 and then in 2006 to establish military tribunals and commissions. Initially they could admit hearsay evidence, the fruits of illegal searches, and confessions coerced under torture.

Then the Military Commissions Act of 2009 cleaned things up a bit but still empowered the executive branch to try a vast array of cases, even inside the United States, involving not U.S. citizens but “alien unprivileged enemy belligerents.”  A president and his attorney general can choose whether to send such defendants to trial before civilian judges and citizen jurors in federal criminal courts, or before panels of military officers in commissions. This is an enormous grant of executive power to evade a court system whose procedures have been seasoned by generations of constitutional precedent. The absence of such extensive precedent for military commissions is one reason for the litigation that is delaying trials.

Under the law now in effect, appeals from the commissions can be heard by the appeals court in D.C., which can even second-guess a guilty verdict by reexamining the evidence. Statements by the accused or witnesses would be inadmissible if made under torture or “cruel, inhuman, or degrading treatment,” but less severe coercion might be allowed during capture or combat if a military judge finds the information “reliable and possessing sufficient probative value.” Because much of the torture remains classified, it is hard for defense lawyers to argue in detail how it was used to extract information that should be ruled inadmissible.

As in civilian courts, the prosecution must disclose exculpatory facts to the accused, who may summon witnesses and confront those against him, but hearsay may also be admitted under restricted conditions. As in civilian courts, complex procedures governing classified evidence seem, on paper, to protect the accused against conviction by secret information he cannot challenge. It remains to be seen how effective that protection will be in practice.

Some judges and some military lawyers who appear on both sides have shown impressive legal ethics and courage to work for justice within a system “flawed in both design and execution,” as General Baker, the Chief Defense Counsel, put it in a 2006 speech at Georgetown. “Put simply, the military commissions in their current state are a farce,” Baker said. “Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.” The rest of his address is a point-by-point indictment of the system and its government practitioners.

No system should depend entirely on the goodness of its participants. Our history contains no guarantee that one or another citizen who rises to authority will wield the immense power of the state with wisdom, fairness, and humaneness. Fragmentation of power, as with a judiciary independent of the executive branch, is the most reliable restraint.

In his speech, General Baker quoted Justice Robert Jackson, whose opening argument as chief prosecutor at Nuremberg contained this admonition on trying our enemies: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

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David K. Shipler

David K. Shipler is a Washington Monthly contributing writer, Pulitzer Prize-winning author of seven books, and former foreign correspondent for The New York Times. He blogs at The Shipler Report.