Terrorism Trials & Investigations

David Frakt on "How to Salvage the Military Commissions"

By Benjamin Wittes
Monday, August 5, 2013, 9:34 PM

David J.R. Frakt---a legal scholar, former defense counsel with the Office of Military Commissions, and a Lt. Col. in the U.S. Air Force Reserve JAG Corps---writes in with the following extended thoughts on the state of military commissions:

How to Salvage the Military Commissions

Two military commission cases - the case of Khalid Sheikh Mohammed and his alleged 9/11 co-conspirators and the Al-Nashiri case (involving the attack on the USS Cole among other charges) - are currently inching along at Guantanamo through pretrial litigation towards trial.  There are still scores of unresolved motions in both cases, which will likely require a dozen or more pretrial hearing sessions before the cases get to trial.  In fact, the trials are so far in the future that the judge hasn’t even set a tentative date.   But before the defendants are ever put on trial for their alleged war crimes against the United States, there will be another sort of war crimes trial in the military commission courtroom.  In essence, the United States will be put on trial for its own war crimes against the defendants, specifically the torture and other cruel, degrading and inhumane treatment of these men, primarily carried out by the CIA at illegal secret “black sites” as part of the CIA’s Rendition, Detention and Interrogation (“RDI”) program for “high-value” detainees in the Global War on Terror.  Despite efforts by scholars like Jack Goldsmith (here and here) and Eric Posner to make the case for the merits of military commissions, there are still many who remain unconvinced.  How this trial within a trial is conducted – behind closed doors or open for the world to see – will largely determine the legitimacy of this experimental justice system in the eyes of the world.

There are two distinct reasons why the maltreatment of these defendants is relevant in the pretrial phase of these cases.  First, the highly coercive nature of the interrogation program is relevant to determine the voluntariness of the accused’s self-incriminating statements, and their admissibility into evidence.  Although the government asserts that it does not intend to offer any statements which are the direct product of torture or coercive interrogation methods, indications are that they do intend to rely at least in part on subsequent confessions made in allegedly non-coercive circumstances.  In such a case, the law is clear that the voluntariness of these subsequent statements must be evaluated in light of the conditions surrounding the initial admissions and the intervening circumstances between the earlier and later statements.  Thus, virtually every aspect of the accused’s treatment during detention is potentially relevant to a defense motion to suppress the accused’s statements.

The second reason why the abuse of these detainees is relevant is even more fundamental.  Indeed, it goes to the question of whether these defendants may be put on trial at all. Under both U.S. Constitutional and military law, where the government has engaged in outrageous  conduct towards a defendant, conduct of a nature which “shocks the conscience,” the government may, as a penalty, forfeit the right to try that defendant at all.  A famous example of this is the Pentagon Papers case against Daniel Ellsberg and Anthony J. Russo, Jr.; in May 1973, the federal trial judge dismissed all charges against these two defendants in light of egregious government misconduct disclosed during the trial. More recently, in the 2008 military commission case of U.S. v. Mohammed Jawad (I was Mr. Jawad’s defense counsel), the military commission trial judge ruled that it was “beyond peradventure” that he had the power to dismiss all charges against the accused under the military doctrine of “illegal pretrial punishment” if other available remedies were inadequate.  The judge chose in that instance not to dismiss the charges against Mr. Jawad, finding that other suitable remedies were available for the “abusive conduct and cruel and inhuman treatment” directed at Mr. Jawad. (We never found out what those remedies were, since the charges were later dismissed before trial.)  And still more recently, the federal judge presiding over the trial of East Africa Embassy conspirator Ahmed Khalfan Ghailani also denied a motion to dismiss charges for the abuses suffered by Mr. Ghailani while he was in CIA custody.    Still, what we know of the interrogations of the 9-11 defendants and Mr. Al-Nashiri indicates abusive treatment that may have been far more serious and pervasive than anything litigated thus far in either a military commission or federal court, potentially rising to the level of conscience-shocking outrageousness that would warrant the extreme and rare remedy of dismissal.  Even if it seems far-fetched that the trial judge would dismiss such serious charges as mass murder, the law is clear that there must be some remedy for abuse of a detainee.  For example, in the Bradley Manning case, the trial judge awarded 112 days of extra credit against his eventual sentence of confinement for the excessively harsh conditions he was subjected to in the Marine Corps brig. So, much as the prosecutors would prefer to keep the focus on the alleged crimes of the defendants (at least until the sentencing phase of the trial when such evidence could be offered by the defense in mitigation or extenuation), it is inevitable that the defense will get to introduce evidence of America’s torture of the defendants long before the prosecution will get to try to prove the heinous conduct attributed to the defendants.  The question is whether anybody but the parties to the case will get to see or hear this vitally important evidence.

So far, the protective order issued at the request of the prosecution has precluded the defense from any discussion in open court of detainee abuse at the hands of the CIA.  In litigation initiated by the ACLU and a coalition of press organizations led by the Miami Herald, the prosecution has asserted the longstanding U.S. government position that national security requires all details of the CIA’s RDI program to remain officially secret, even though many aspects of the program have been publicly disclosed previously.  The interest of the press and public in an open trial has been given short shrift by the trial judge and the Court of Review for the Military Commissions.  The government has even gone so far as to assert that any testimony by the defendants themselves regarding their treatment by the CIA is also classified and may not be given publicly.  This effective censorship of the personal memories and experiences of captured enemy combatants in an American courtroom is unprecedented, deeply troubling, and potentially fatal to the ultimate credibility of these hugely important trials.

It is understandable why some in the U.S. government might be eager to avoid further disclosure of its misdeeds.  Public revelations of our torture policies, particularly in the form of personal testimony by the victims of torture, will have significant consequences.  The revelations will likely be deeply embarrassing to the U.S., will provide fodder for our enemies, and could undermine our moral authority internationally.  An open discussion of the blatantly illegal techniques used by the U.S. might also create pressure on the Obama Administration to meaningfully investigate and prosecute those responsible for authorizing and carrying out the Bush-era torture policies, something that the President has been loath to do.  Direct testimony by the defendants regarding their suffering may humanize and engender sympathy for the defendants, perhaps reducing the likelihood that one or more will receive the death penalty.  The military judge will likely feel added pressure to provide some form of remedy to the defendants if the full extent of their mistreatment is aired publicly, possibly even removing the death penalty as a possible punishment on his own authority.  Yet none of these reasons are an appropriate basis for keeping such information secret. The prosecution, led by Army Brigadier General Mark Martins, asserts that the RDI program remains properly classified for legitimate reasons of national security, but it is very difficult to evaluate the credibility of this claim because the briefs supporting the need for closed sessions are themselves classified.  It is hard to come up with convincing reasons why the interrogation techniques and conditions of confinement utilized by the U.S. between 2002 and 2006, which were abandoned by the Bush Administration and formally disavowed by President Obama, should remain a national secret so many years later.  Apparently, the intelligence community is concerned that some minor details of the defendants’ testimony could be combined with other open source information to create a “mosaic” of information that might assist a determined observer to identify a protected source or compromise a method of information gathering.  The intelligence community is also apparently concerned that the disclosure of information that was promised to remain secret will inhibit future intelligence sharing.  These concerns, although perhaps held in good faith, seem overblown.  Information such as names of intelligence operatives, sources and places can be protected without a blanket prohibition on the defendants’ sharing their experiences.  It is the nature of the abuses committed by the U.S. that is relevant, not the identity of the abuser or the precise location of the abuse.  Whatever minimal risks to national security may exist from an open hearing can be minimized with carefully tailored procedures and redactions of documents, rather than complete censorship.  Witnesses can be instructed to limit their testimony or use coded language to avoid harming national security. As a further safeguard, military commission proceedings are broadcast with a tape delay to preclude the inadvertent release of actual state secrets.

President Obama’s revamped military commissions adopted the motto “fairness, transparency, justice.”  Although improved in some important respects, the ongoing military commissions are still lacking in transparency. They will never be perceived as legitimate so long as crucial proceedings of great interest to the public are conducted behind closed doors.  Chief Prosecutor Army Brigadier General Mark Martins has been a forceful and articulate defender of the revamped military commissions and has labored mightily to convince the international community that the commissions are consistent with fair trial standards, the rule of law and American values.  International fair trial standards, reflected in Article 14 of the International Covenant on Civil and Political Rights, require that trials be open to the press and the public.   While the ICCPR does recognize a national security exception, there is a widespread perception that this exception is being invoked to cover up torture, rather than for legitimate national security concerns. While it is the prosecutor’s obligation to publicly defend the official position of the U.S. government regarding the classification of the RDI program, the hope of vindicating these trials’ fundamental fairness will be dashed if General Martins and his fellow DOJ and JAG prosecutors in military commissions are ultimately seen to have defended the indefensible by helping the CIA to hide the truth.  So long as the defendants are prohibited from discussing their detention experiences in open court, the military commissions will never be viewed as fair, transparent or just.

There is a solution that would greatly enhance the perception of the military commissions, both domestically and abroad.  President Obama could simply order the relevant information declassified so the defendants could speak freely. Publicly releasing the Senate Select Committee Intelligence Study of the CIA’s Detention and Interrogation Program, as urged by the ABA, would be an excellent start. General Martins must use his considerable powers of persuasion behind the scenes to convince senior administration officials and the intelligence community of the need for maximum declassification.  He and  others in our government who have a genuine commitment to fairness, transparency, and justice must convince opponents that the value of conducting a credible, transparent trial—including the benefits to our longer term national security--outweighs the risks to national security of fully open proceedings.  If necessary, General Martins must be prepared to take a firm stand.  Those with the power to declassify this material need to know that he is so committed to the principle of an open trial that he will resign rather than take part in a process in which key portions of the defense case are conducted in secret. If the President is as committed to the success of the military commissions as he seems to be, then the right choice will be clear.  Despite the rocky history of the military commissions, there is still a chance to salvage them and conduct fair and open trials that the United States need not be ashamed of and that the world will accept.  But that will not happen if our own wrongdoing is hidden behind a cloak of secrecy.