Writing in Salon magazine, Laura Pitter of Human Rights Watch declares that "fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark." Pitter spent Tuesday and Wednesday of this past week, as did I, watching the Al-Nashiri military commission. But in reading her piece, I wondered whether she and I had watched the same arguments. The arguments I saw reflected a sharply adversarial process, with a serious judge, very fine advocacy on both sides, and a series of motions that raised issues that differ only at the margins from those that would arise in a federal court proceeding. Pitter, by contrast, says that "this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems."
The trouble is that many of the "vast differences" Pitter describes are actually mirages. They exist largely--or in some cases exclusively--in the minds of those who want very badly to see them. Indeed, nearly every point in Pitter's essay is wrong, or at least misleading, and she is putting these points out in the name of an important human rights NGO whose monitoring of legal proceedings is taken seriously by many people. While there are legitimate questions about the developing military commissions system, it is important to focus on the real questions, not the mirages. I therefore offer the following point-by-point response not because I hope to convert Pitter to the cause of military commissions, about which I have mixed feelings myself, but rather as an exercise in clarifying what is truly distinctive about the commissions process, and what is not.
There are certain trivial errors in Pitter's account which I will ignore. I am told, for example, that the glass to which she refers is not a bulletproof barrier, whose mention feeds easy stereotypes of excessive military security, but merely a sound-resistant barrier designed to enable observation of proceedings that could delve into classified matters at any time (although no such classified sessions have yet taken place in three very full days of proceedings). My point here is not to pick nits but to show how her allegation of a pervasively unfair system is really a house of cards built out of the flimsiest materials. I will focus only on those errors with substantive implications. Even those, I'm afraid, are numerous, and they start right at the beginning.
1) "One notices first the physical," Pitter writes: "the few observers permitted to visit the isolated island base reach the courthouse through a maze of walkways secured by high dark-mesh fences, guards and double barbed wire on both sides." The Al Nashiri hearings were not, in fact, open only to a "few observers" whom the government "permitted" to visit Guantanamo. Because the prosecution introduced a motion for closed circuit transmission to the continental United States, they were genuinely open to the general public. Anyone who wanted to see them could come to Fort Meade. The terms on which press had access compares in some ways favorably to proceedings in federal court. I was able, as I noted at the time, to blog live from the screening room in which I spent two days. I can't do that at the D.C. Circuit or in the federal district court in Washington because of restrictions on the kind of technology I can bring into the building. Pitter is correct that the optics of access are different--particularly the need to keep observers in a different room from the proceedings and on a 40-second delay, and these optical differences have some substantive implications. But the bottom line is that the press and members of the general public had access to every word that was spoken at this two-day-long hearing.
2) "Nashiri's," Pitter writes, "is the first death penalty case to move forward in the military commissions. The fact that it is just being heard now, nine years after he was apprehended, demonstrates one of the starkest differences between the military commissions and federal courts--the absence of any real right to a speedy trial. This type of delay would never occur in federal court and greatly prejudices both sides, as memories fade and witnesses disappear." The claim that this sort of delay would never happen in federal court is dead wrong. To cite only one examplee, what about the case of Ahmed Ghailani, a Guantanamo detainee who was tried in federal court after a similarly lengthy period of military detention? Pitter knows about this case, and she knows about the delay. At the time of Ghailani's sentencing, she did not question its legitimacy on grounds that the delay had greatly prejudiced both sides. Rather, Human Rights Watch exulted that:
The sentence of Ahmed Khalfan Ghailani to life in prison without the possibility of parole underscored the value of trying terrorism suspects in civilian courts rather than in discredited military commissions, Human Rights Watch said today. The sentence marks the end of the first successful prosecution of a former Guantanamo detainee in US federal court.
"The Ghailani trial demonstrated that a complex case for a horrendous crime committed abroad can be fairly tried in a legitimate system and result in a sentence worthy of that crime," said Laura Pitter, counterterrorism advisor at Human Rights Watch.
Indeed, Human Rights Watch has campaigned for federal court trials of other high-value Guantanamo detainees and--at least to my knowledge--has never suggested that such trials would be illegitimate because of a lengthy military detention first. Not only, in short, is Pitter wrong that such delays "would never happen" in federal court, she urges more trials in federal court featuring such delays.
3) Pitter next observes that nearly all of the issues under discussion at the hearing are ones that would never arise in federal court. Her first example, is that "the defense asked the judge to order the military to stop reading mail marked attorney-client privileged. In a federal prison, while mail might be inspected for physical contraband, a warden wouldn't read clearly marked legal mail to determine if it was truly a privileged communication." Again, however, Pitter is incorrect. As this week's argument on this point reflects, similar issues have arisen in the federal courts. Indeed, the Bureau of Prisons reserves the right to place Special Administrative Measures on inmates, including--where the inmate may be using communications with counsel to further acts of terror--"appropriate procedures for the monitoring or review of communications between that inmate and attorneys." The government here is seeking something well short of what the outer edge of what the SAMs allow; it's asking for a brief cursory inspection of material sent to Al Nashiri by a team walled off from the prosecution and which does not read the material for content. And it's not even clear, moreover, that the government will get what it is asking for. The state of play as of this week's hearing is that the Military Judge has asked the defense to draft an order that will satisfy its concerns--presumably by allowing inspection only for physical contraband--and the government to respond to that proposed order. So it is by no means clear that the government will be permitted to do anything in the Al Nashiri case that it could not do with a detainee facing trial in the federal system.
4) Pitter's next complaint is that "the defense also sought permission from the judge alone to request funds for expert witnesses, a routine motion in federal court. But in the military commissions, the defense normally shares its request with the prosecution, potentially revealing its case theory and litigation strategy." In trying to describe a great unfairness here, Pitter leaves out two key facts. First, she neglects to mention that the prosecution actually joined the defense's motion to present its requests for expert assistance ex parte; this is, in other words, not a situation in which the prosecution is trying to use expert assistance requests as a window into defense strategy. Second and more importantly, she leaves out the judge's resolution of this matter, which permitted the defense to submit only the barest minimum of information about the assistance it seeks to the other side and specifically invited the defense to return to court if the Convening Authority refuses to consider such requests or demands more information be shared with the other side. So while the rules do differ, it's not clear that they differ in a way that will cause the defense a problem getting the assistance it wants without showing its hand to other side.
5) "Observers and reporters dozed during the hours of debate about whether defense email could be encrypted--a seemingly dry issue until one realizes that request was being made because the Defense Department has been reading all the defense attorneys' email," Pitter next observes. Pitter may have dozed. I did not. And the discussion I did not sleep through did not, in fact, deal with whether the Defense Department has been "reading" all of the defense's emails. The matter at issue in the defense motion is whether DoD's normal cybersecurity procedures--screening for malware and the like--permits improper access to privileged communications and what procedures should be put in place to protect privileged defense communications. Notably, the prosecution did not argue for its having access to defense communications. Rather, the defense argued for a kind of "enclave" of technical access privileges to protect itself; the prosecution argued, in turn, that the defense should use encryption to protect material it wanted to secure. Military Judge James Pohl ruled, as follows, in Ritika's and my summary:
As framed, he says, the defense motion for secure communications is granted and not really disputed. The question is the remedy. The defense wants an enclave, the government wants it to use encryption. The remedy, he rules, will be that the defense should use the encryption method to protect its confidential communications. If in the future, this proves overly burdensome, the defense can raise it again. But at this time, the defense’s concerns seem more than entirely met by the remedy the government has proposed.
6) Pitter next complains that "The classified nature of the evidence means the defense only gets summaries of parts the prosecution deems relevant and that the judge approves. A request by the defense to challenge the accuracy of the summaries was denied. But civilian judges recognize that the parties should be able to challenge summaries, and may do so with a motion to reconsider." I have not studied this issue in depth, and would love to hear from CIPA experts on how different this really is, but my impression is that Pitter here is wrong again. As far as I know--and as far as was cited in the hearing--exactly one civilian judge has ever granted a motion to reconsider a CIPA summary that the defense regarded as inadequate. That case, the Scooter Libby case, involved some quite unusual circumstances. The more general rule under CIPA as typically interpreted by the federal courts in prosecutions of international terrorism defendants is that, as under the MCA, the defense can’t reopen a CIPA summary other than by submitting a new discovery request. Indeed, the MCA 2009 was, I think, an effort to codify the state of CIPA law as it had evolved and apply it in the military commissions process. There's much to be said, in my view, for making the preparation of substitutions more adversarial than it is now, but this is as much a criticism of CIPA as it is of the MCA. And once again, it's not clear at all that the defense is suffering any prejudice as a result of its inability to move to reconsider the summaries. Under the procedure adopted by Judge Pohl, the defense has until April to make an ex parte submission related to the summaries. And while the summaries, once he approves them, will then not be subject to reconsideration, the defense--to the extent it believes that any material has been left out--can always file another discovery request. I have little reason, in other words, to think at this stage that the defense will not get substantially the same classified discovery in Al Nashiri that it would have received under CIPA in federal court.
7) "Despite the volume of documents, the prosecution pressed for trial to begin on March 3. That type of timeline is unheard of in federal court, especially in a death penalty case," Pitter writes. Actually, it isn't unheard of in federal court--and the prosecution did not press for a March trial date either. In both the federal system and under the MCA, the defense has speedy trial rights, which have to be waived in order for a trial not to proceed quickly. In this case, the defense had waived its speedy trial rights but later suggested that it was withdrawing that waiver. The prosecution simply pointed out that absent such a waiver, the trial was statutorily required to begin no later than March. With a waiver, there is no dispute that trial is quite a ways off. And once the defense had clarified that it was not insisting on its speedy trial rights, the judge scheduled the next motions hearing for April. This sort of back-and-forth is totally typical of a federal court proceeding.
8) Finally, Pitter writes that the rules of evidence in commissions differ vastly from those in federal court: "Statements from the accused obtained by torture are prohibited. But evidence derived from other types of coercion may be admitted. In federal court, any evidence derived from coercion would be barred, absent a showing that it would have been discovered in another lawful way. Also, unlike in federal court or the US courts martial system, multiple levels of hearsay are admissible (like a memo reporting on a conversation), denying a defendant any genuine right to confront witnesses against him." Perhaps Pitter has never read the Military Commissions Act of 2009, but this statement reflects a profound ignorance of the reforms that it brought about. The MCA 2009 flatly bars not only statements obtained by torture but also statements obtained through any cruel, inhuman, or degrading treatment. As to statements derived by other means, the law generally requires that they be given voluntarily to be admissible. It has only a single exception to this rule, one that allows statements to be admitted if they were "made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence." I have heard no suggestion that the case against Al Nashiri will rely on statements given under such circumstances. Voluntariness, as in federal court, will be the hallmark of admissibility in this case.
As to multiple levels of hearsay, I will wait and see whether any document or testimony reflecting multiple levels of hearsay is going to make it past the MCA's test of hearsay admissibility, which reads as follows:
Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if—
(i) the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the proponent’s intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained);
(ii) the military judge, after taking into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne, determines that—
(I) the statement is offered as evidence of a material fact;
(II) the statement is probative on the point for which it is offered;
(III) direct testimony from the witness is not available as a practical matter, taking into consideration the physical location of the witness, the unique circumstances of military and intelligence operations during hostilities, and the adverse impacts on military H. R. 2647—394 or intelligence operations that would likely result from the production of the witness; and
(IV) the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
Yes, military commissions allow in theory certain hearsay materials that a federal court or court martial might exclude. So do many European court systems and the international tribunals human rights groups so often trumpet. The circumstances in which the MCA 2009 would allow hearsay, however, are comparatively narrow. And it makes no sense at this stage to condemn all military commission proceedings based on the hearsay they could theoretically admit, rather than on the basis of the trials actually conducted under them.
More generally, I'll wait to see what the Al Nashiritrial brings before judging it. But I was impressed with what I saw this past week. It looked to me like a serious court proceeding, one that weighed serious issues seriously. It looked to me like one in which defense concerns were raised aggressively and often successfully and in which the defense function was not impaired. I have no doubt that Pitter earnestly desires fair trials of Guantanamo detainees. And in light of the missteps with commissions over the past decade, I cannot criticize her skepticism. But the motions hearing I saw did not look anything like the proceedings she describes.