Can the military commissions be improved? Recent events squarely raise the question. A New York jury recently convicted Osama Bin Laden’s son-in-law of conspiracy to kill Americans and other terrorism-related charges. Afterwards, Attorney General Eric Holder lauded the success of civil courts in resolving “hundreds of other cases involving terrorism defendants,” and said “it would be a good thing for the country if this case has the result of putting that political debate to rest.” This swipe at some Congressional Republicans---who insist on legislative restrictions against moving detainees from Guantanamo to the U.S. for trial---lays bare a clear preference by the administration for trying terrorism defendants in civilian courts. Ditto the more recent extradition and ongoing trial of Abu Hamza al-Masri on charges of conspiracy, hostage taking, and providing material support to terrorism. But GOP hard-liners are unlikely to yield. Military commissions thus remain the only show in town for trying alleged war criminals at Guantanamo Bay, including the five co-conspirators charged with offenses arising from the 9/11 attacks, and Abdul Rahim al-Nashiri, accused of organizing the 2000 attack on USS Cole in Yemen.
To be sure, the proceedings have seen their share of procedural hiccups and delays. The 9/11 case in particular has been in the news of late, given the FBI’s apparent effort to interview a defense team member in the course of a security investigation---and to preclude him from divulging that fact to his colleagues. That episode followed another well-publicized one, in which some unknown and unseen person silenced the audio and video feed of a defense attorney’s in-court remarks; also, hidden microphones separately (and quite notoriously) had been found in attorney-client meeting rooms.
The prohibition against bringing Guantanamo detainees to the United States, on the one hand, and the commissions’ stumbles, on the other, together suggest a way forward. Rather than continuing to tilt at windmills over the broad choice between military commissions and Article III courts, a wiser course of action for the administration would be to invigorate commission prosecutions. Here are eight virtually-immediate ways to improve the military commissions to make them more effective instruments of justice.
Station commissions participants at Guantanamo for the duration of assigned cases.
At present, a Joint Task Force (JTF) at Guantanamo is responsible for security, health, and administration of the detainees there. But the Office of Military Commissions (OMC) onsite presence is small, and consists only of a satellite office. Everyone else is in Northern Virginia. Everyone. The Convening Authority. The Office of Military Commissions staff. The judges. All the prosecutors. All the defense counsel. Roughly once every six to eight weeks, OMC sends a judge, a prosecution team, the defense teams, and representatives from the OMC “home office” to Guantanamo for about a week per case, along with public affairs officers, operations and logistics personnel, trial observers, journalists, and alleged victim family members. The group works for about 4-5 days of hearings, sometimes up to 9-10 days, and then everyone comes home. Even under optimal conditions, significant time is lost to travel, resulting in 4-5 days of hearings requiring 7 to 8 calendar days. Several weeks later, the cycle repeats itself, except when legal issues arise and occasion delays.
Because of enduring statutory restrictions, beginning with Sections 1032 and 1034 of the FY2011 National Defense Authorization Act, the detainees cannot be moved to the United States for trial or detention. Thus, in order to move these cases to resolution with dispatch, the whole organization should be sent to Guantanamo and told to stay until the cases are over, with occasional week-long breaks, respite trips home, and (of course) travel as needed for case work. The United States sent combat troops to Iraq for over 15-month tours, and commanders and staff officers often served in Iraq and Afghanistan for 2-3 year tours. It should not be too much to ask the lawyers responsible for prosecuting, defending, and supporting the commission cases to go to Cuba for mostly continuous, extended periods.
If there are concerns about the capacity of the naval base to handle a larger, longer-term complement of commissions personnel, then they can be addressed---either by purchasing the needed additional capacity or leasing it. We currently spend $110 million each year on Guantanamo, with a substantial portion of money wasted on shuttling people back and forth on chartered flights. Keeping the whole apparatus in Guantanamo until the cases are resolved could ultimately be less expensive. Moreover, once the currently-charged cases are resolved, the government can stop spending money on commissions transportation and logistics almost completely.
Vest the head of U.S. Southern Command with convening authority.
The current Convening Authority for commission cases is a civilian political appointee, with a full-time Washington, DC day job---as General Counsel of the Department of the Navy. A better approach would be to select a uniformed Convening Authority who is closer to the problem, both by mission and geography. A logical choice here would be the Commander, U.S. Southern Command---a 4-star officer under whose authority the JTF provides (among other things) support for military commissions. The Commander works out of Miami, only a couple hundred miles from Guantanamo Bay, and is a military officer accustomed to serving as a convening authority over court-martial cases. And, because he would have exclusive authority over both the Commissions and the JTF, the Commander would be keenly interested in moving the cases to completion; and readily positioned to resolve skirmishes between those responsible for securing all detainees and those responsible for handling commission prosecutions. It makes better sense to have a single person overseeing detention and trial matters, than to have a part-time Convening Authority in Washington, DC attempting to establish priorities for the JTF staff with regard to commissions. Finally, the Military Commissions organization currently in existence, with scores of civilian counsel, employees and contractors supporting the process, is a far cry from traditional, historical military commissions, which were truly military in nature. A uniformed convening authority atop the leviathan structure of the Military Commissions would highlight the military nature of the commissions.
Amend the 2009 Military Commissions Act (MCA) to require resolution of appellate issues on a compressed timeframe.
Several stages of the handling of a military commission case have the potential to introduce unacceptable delay, and in fact, delay frequently occurs: for example, the administration has been waiting on the U.S. Court of Appeals for the D.C. Circuit to issue its final decision on the issue of whether certain offenses can be reached under the MCA since oral argument en banc in August 2013. To address this, we propose a statutory requirement that the convening authority quickly take action on completed cases; and that upper courts more quickly process any interlocutory appeals or appeals from final judgment (like Al-Bahlul).
Congress regularly imposes constraints on judicial power when it prescribes statutes of limitations and other procedural and jurisdictional restrictions; a time-to-decision requirement would not be categorically different. And, if the commissions are a national-security priority, it is not a bridge too far to ask the judiciary to help move these cases to completion faster than other, more routine matters. Any statutory deadlines would be largely precatory, of course, because it would prove difficult to enforce the deadlines against the courts. Still, courts usually adhere to congressionally-set procedures, and there is no reason to think they would not do so in this case. Moreover, military courts have crafted procedures to ensure quicker processing of cases---as the U.S. Court of Appeals for the Armed Forces demonstrated in U.S. v. Moreno in 2006. Among other things, Moreno calls upon convening authorities to take final action on completed courts martial cases within 120 days, and intermediate military appellate courts to docket appeals 90 days thereafter---and presumes legally actionable, unreasonable delay if convening authorities or appellate courts fail to meet those milestones.
A 120 day timetable---from notice of appeal to issuance of a decision---clearly constitutes a compressed cycle. Even so, courts regularly hear emergency petitions on urgent issues; and, as Moreno illustrates, quick timeframes are a feature of courts martial practice already. Abridging the briefing, argument and decision sequence may prove uncomfortable to the litigants and the convening authority, but it is a necessary accommodation of the urgency required to move these cases to resolution. They are not, after all, ordinary cases: instead the commissions involve alleged violations of the laws of armed conflict, a conflict which itself arose from the most egregious terrorist attacks in the history of our nation. If the United States can act with sufficient urgency to move a quarter million combatants halfway around the world to conduct high-intensity military operations in inhospitable terrain in a few weeks, then certainly the lawyers, judges, and the convening authority, lodged in the comfortable environs of Washington D.C. or Miami, can resolve appellate matters within four months.
Sever the joint 9/11 case into individual cases capable of proceeding on different timetables.
Referring these cases together for trial---the military commissions equivalent of a joint indictment---may have appeared to be a good idea at some point, but that time is long past. Joint trial allows any problem causing delay with regard to one defendant---for example, when one accused demonstrates indicia of mental disease or defect---to mandate delay for all five co-accused, and encourages defense gamesmanship with regard to sharing the responsibility for manufacturing delay. In a capital case, delay is a form of victory, where the defense team’s ultimate goal is to save the lives of the accused, or delay the imposition of a death sentence, assuming conviction. So far, the prosecution’s joint-trial decision, initially designed to move the cases to resolution faster, ironically seems to help the defense achieve its objective of delay.
Severing the cases would allow the Government to take the death penalty off the table for some defendants, encourage plea agreements, and “roll” lesser defendants on the higher-value targets, like Khalid Sheikh Mohammed. Whether those lesser defendants would in fact elect to save their own lives in trade for testimony against a higher-value defendant remains to be seen; and the challenge of convincing them to do so belongs to their lawyers and to the prosecution. Severance, though, could make that possibility more likely.
Charge the remaining commission cases soon, if not immediately.
The remaining detainees, other than the eight currently charged, fall into three categories: (1) detainees eligible for trial by military commission against whom classified and unclassified evidence exists that can be admitted in a judicial proceeding, (2) detainees eligible for trial by military commission against whom classified evidence exists, but the U.S. Government will not agree to use of this classified evidence in a judicial proceeding, and (3) detainees cleared for release and repatriation.
The eight charged detainees accused fall into this first category, along with about a dozen other detainees. Charge that dozen now, and get their cases moving. If the Office of Military Commissions is overwhelmed by the number of new cases, then resource the problem: get more prosecutors, defense counsel, court reporters, security personnel, and judges. Historically, uniformed U.S. convening authorities can have up to four dozen general courts-martial pending at various stages of prosecution---including, occasionally, capital cases---but with relatively fewer resources than what currently exists at OMC. The slow pace thus is a solvable, surmountable problem, provided the government demonstrates its commitment to due process and procedural fairness, by supplying needed resources.
Ensure the detailing of the most-qualified military counsel, for the duration of charged cases.
To that end, the Secretary of Defense should require that military counsel have a prescribed number of years of service, have achieved certain military career litigation milestones prior to assignment (i.e., 100 courts-martial tried to judgment, 10 jury trials, etc.), and are provided their choice of assignment (job or geography) upon transfer from duty at the Military Commissions, including assignment to advanced education programs. Moreover, once an officer is detailed to a case, he or she should not be released or excused for any reason other than bona fide emergency. Release authority should be reserved to a very-high level, perhaps to the Secretary of Defense or the relevant service Secretary.
Finally, every performance evaluation issued, no matter what service, ought to contain the following language: “The Secretary of Defense has determined duty with the Office of Military Commissions is a matter of the highest national security importance, and shall be considered by service promotion, or other screening boards, as the equivalent of the most desirable assignment within the service, including combat duty.”
Such adjustments would ensure that the best officers and attorneys are in the pool for assignment with the Military Commissions, and it would ensure they stay until their assigned cases are complete, whether that period of time is two, three, four, five, or more years. Finally, it would mitigate the, actual or perceived, career damage that inevitably would occur if an officer was required to remain assigned to the Commissions longer than a standard 3-year tour, and thus would encourage high-performing officers to volunteer and compete for assignment. This is not an indictment of the performance of the uniformed attorneys who have served at OMC. It is merely a guarantee that high performers will compete for assignment, that attorney-client relationships, once formed, are honored, and that no officer’s career will be scuttled by accepting orders to OMC. It would also signal that the military commissions are taken at least as seriously as the trials following World War II, rather than their current perceived status as just another military activity competing for manpower.
Implement a system of release of court documents equivalent to that used in federal district courts.
The military commissions have improved significantly on normal court-martial practice when it comes to the timely release of court documents, but there is room for improvement. The commissions currently make available all of the documents related to, or introduced in court. That compares favorably to court-martial practice, where observers often must file Freedom of Information Act (FOIA) requests to obtain routine court-martial documents. Still, the military commissions nevertheless lag behind the more open federal court document practice. For example, there are numerous unclassified documents that were introduced in open court in U.S. v. Noor Uthman Muhammed, that, after security review, are completely redacted on the commissions’ website. Moreover, disclosure of unclassified documents is frequently delayed by security review for over two weeks, thus diminishing their timeliness.
Transparency would be greatly improved if the military commissions were to adopt the system used by all federal courts, Public Access to Court Electronic Records (PACER). For example, when the prosecution of Ahmed Ghailani was transferred from the military commissions to the United States District Court for the Southern District of New York, in June 2009, a much-greater number of trial documents were available to the general public through PACER. The transparency of criminal proceedings for such high-profile cases should not turn on the forum in which they are tried.
Require high-level executive branch review before undertaking actions potentially harmful to ongoing commissions proceedings.
As noted above, significant government miscues (the FBI’s investigation in the 9/11 case, in particular) have damaged the commissions’ credibility. These give an appearance, even to non-conspiracy theorists, of a government effort to hamstring the prosecution’s efforts to obtain convictions. At some point, an egregious government bungle---even one not committed by the prosecution and without its knowledge---may require a military judge to grant extraordinary relief. It would be a shame if that were to occur, because the commissions, if allowed to function without paralyzing external interference, could be effective instruments of justice.
The intrusions, so far, apparently have been driven by various government actors far afield of the prosecution---including other DoD and intelligence community actors, and, most recently, the FBI. Their common superior is, of course, the President. Having that in mind, an Executive Order could spell out guidance regarding would-be interference with the judicial proceedings in Guantanamo Bay, by conditioning any executive action likely to impinge upon the proceedings---such as external monitoring of the proceedings or attempts by law enforcement to interview defense team members---on the prior, nondelegable concurrence of both the Attorney General and the Secretary of Defense. This would place the intelligence, law enforcement, and defense communities on notice that individual institutional priorities---continued collection, investigations, even security---must sometimes give way to the need to conduct actually and apparently fair, efficient, and ultimately successful military commissions.
With certain technical and policy improvements designed to energize the process, the military commissions can be an effective and efficient vehicle for the prosecution of violations of the law of war, consistent with federal and military best practices and harmonized with constitutional and international principles of justice.
Butch Bracknell is a former attorney-advisor within the Office of Military Commissions and a retired career Marine lawyer. James Weirick prosecuted the military commission case of U.S. v. Noor Uthman Muhammed and is an active duty career Marine lawyer. The views expressed are those of the authors and do not reflect the official policy or position of the Department of Defense, the U.S. Government, or any other entity.