In January I wrote a short piece for Foreign Policy arguing that the current military commission system is much less problematic than some critics claim though also not the ideal solution some perceive it to be. Among other things, the piece resulted in an online and offline exchange of views with Raha Wala of Human Rights First, who takes a more skeptical view of the commission system (Raha also is the author of a good paper addressing some of the substantive issues currently pending before the CMCR in al-Bahlul). I invited Raha to restate his objections in the form of a guest post, and am pleased to present it here (I’ll leave my original piece to speak for itself rather than respond further):
Let me first say that I enjoyed your Foreign Policy piece (even if I remain critical of it in several respects and continue to believe it provides “middle-of-the-road” cover for supporting military commissions). I thought it was a pretty fair and accurate assessment of where things stand politically and legally on the viability of military commissions as a vehicle for trying Guantanamo detainees. And I strongly agree with one half of your central argument: that military commissions are not the “solution that their supporters imagine.” Indeed, Human Rights First has for a long time pointed out that if the metric is number of convictions, or conviction rate, Article III federal courts have pretty convincingly trounced military commissions. With that said, I disagree just as strongly with the second half of your central argument: that military commissions aren’t as bad as civil liberties advocates think.
One reason I disagree is that I think we have different ideas in mind for what the appropriate baseline is for judging the merits of military commissions. In presenting your case for why military commissions are not that bad, you note that the current legal architecture for the military commissions – the Military Commissions Act of 2009 – is a substantial improvement over its predecessors, in part because the Supreme Court forced the issue in Hamdan v. Rumsfeld. You are right about this, but the first post-9/11 military commissions (which were problematic in too many ways to mention) are not, and should not be, the baseline for comparison. Instead, the baseline is whether the military commissions are “regularly constituted court[s] affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” as is required by the Geneva Conventions. And this, in turn, means that individuals accused of war crimes should generally be tried in the domestic courts available (Article III courts, or courts martial at the very least), not extraordinary courts with different, substandard judicial guarantees.
Now, you do go on to compare the judicial guarantees of the military commissions with those of Article III, federal courts. But even here I think you understate the differences between the two, and give insufficient weight to the value of these differences. First, you claim that statements obtained from torture or cruel, inhuman, and degrading treatment are not admissible in military commissions, but I think that’s far from clear either as a matter of law or practice. Lax hearsay rules (which is a separate problem, as you note) could allow such statements in, as could a rule that allows coercive statements to be admitted if it is “in the interest of justice.” Indeed, the prosecution of Omar Khadr raises serious questions regarding whether statements obtained as a result of torture will be barred in military commissions. Second, as you point out, whether defendants at Guantanamo will be afforded all the constitutional protections typically afforded to criminal defendants remains to be determined. But what you fail to point out is that as a matter of policy, the government continues to forcefully argue that the procedural guarantees of the Constitution don’t apply at Guantanamo. Third, there is the day-to-day practice of the military commissions trials, which is very unfriendly to the defendant; the pattern of resignations of military commissions prosecutors and the ongoing, vocal complaints from detainees’ defense counsel regarding their inability to fully advocate on behalf of their clients, are not mere coincidence. I could go on, but I think it’s fairly clear that we probably disagree on the degree to which military commissions provide the robust procedural safeguards of Article III, federal courts.
The most fundamental issue relates to the principle of legality and although you raise this issue, I think you give it short shrift. Military commissions were designed to try combatants for serious violations of the laws of war, but most of the Guantanamo detainees slated for military commission trials are either civilians or low-level combatants; none, as far as I’m aware, have been charged with any universally recognized war crime. You do note that whether military commissions can legitimately prosecute conspiracy, material support, or unlawful killing – the three charges most frequently used in military commissions cases – remains a “hot issue,” but you don’t seem to appreciate the gravity of the concerns human rights advocates have about this. International legal scholars agree that these are not war crimes and, even if these crimes could be codified as such, doing so and moving forward with prosecutions would constitute ex post facto punishment and violate the universal principle of legality. Thus the legality issue isn’t merely about whether the military commissions are “useful” for incapacitating terrorists, as you put it; it is about the sanctity of international law generally, and International Humanitarian Law in particular.