Last week I asked whether per se opposition to military commissions was in the GTMO detainees best interests, where their “interests” were defined as “(a) maximizing [the detainees’] procedural rights, and (b) shortening their time in GTMO.” I had in the back of my mind people like Hamdan, who likely would still be languishing in military detention but for his military commission conviction and short sentence, which put him on a fast track to release. My basic argument was that eliminating the commission option would make longer-term indefinite military detention with fewer procedural rights more likely for detainees otherwise triable in commissions, and would increases pressure to detain the military detention option (by reducing its plausible alternatives). I said I was sure that anti-commission forces have a “theory about how the pursuit of the principle [opposing commissions] is what is best for the detainees,” but added: “I just do not know what the theory is.” Baher Azmy, the Legal Director of the Center for Constitutional Rights, has written a response to my question, below.
Jack Goldsmith not only disagrees with CCR’s position regarding the futility and dubious legal basis for the military commission system, he takes the additional step of questioning the judgment of CCR attorneys (and other human rights NGOs) who recently used the Hamdan decision to broadly criticize the Commissions, as we have been doing since the idea for them was first hatched in 2001. Jack questions whether CCR’s criticism of the Commissions is in the “best interests” of our clients when, absent a military-commission process, detainees would be subject to the potentially worse fate of an indefinite detention regime that is reflexively ratified by the D.C. Circuit. We appreciate Jack’s concern for the well-being of our clients, but are not sure of the source of his confusion. Surely, a responsible lawyer – with fealty to the clients and human rights law – has no obligation to praise one unjust system simply because a more odious one stays in waiting.
Indeed, it is hard for us to accept the premise of Jack’s question – i.e., that there exists some meaningful moral or legal choice between military commissions and indefinite detention; that asserted choice looks a bit like a charade to us. After all, isn’t it the position of the US government that even a man acquitted by a military commission could still be subject to indefinite detention under the laws of war? The whole Guantanamo apparatus is a shady deal, and not least because 86 men still linger in indefinite detention process even though the Obama Guantanamo Task Force unanimously recommended them for transfer. It would seem a lawyer should be very cautious to endorse any aspect of a system that is designed to produce heads-the-government-wins, tails-the-detainee-loses outcomes.
Ultimately, CCR rejects the legitimacy of both systems and believes it is in the interests of the detained men, and of justice, to either be charged with a crime or released. Specifically, CCR’s position regarding Hamdan is not just that “civilian” detainees aren’t subject to military commission trials; we also argue that they cannot be held indefinitely under the laws of war “in order to prevent return to the battlefield” because that is a concept that applies only to “combatants” (i.e., POWs). Thus, our position does not inevitably doom our clients to indefinite detention.
Finally, CCR’s longstanding criticism of the military commissions is not really the issue here. What Hamdan demonstrates is that the commissions system is built on a house of cards and any outcome it produces is just as unstable. So as much as CCR is “committed to ending military commissions altogether,” the commissions have just proven themselves capable of spectacular failure all on their own. As much as we might like to take credit for the victory, it was the D.C. Circuit (of all courts) that taught us that lesson.