Terrorism Trials: Military Commissions

Raha Wala Responds on Military Commissions and Mission Creep

By Jack Goldsmith
Monday, April 2, 2012, 5:45 AM

Below Raha Wala of Human Rights First responds to my to my post on mission creep in NGO demands concerning military commissions.  I think that a comparison of these complaints and concerns with the 2002 complaints and concerns supports rather than detracts from my mission creep speculation.  I also think the concerns and complaints below effectively amount to a rejection of military commissions as a distinctive form, which I take it that Kate Martin’s post meant to deny was the import of the 2002 document.

And now for Raha’s response:

In making his case for NGO “mission creep,” Jack states that all the of deficiencies that the NGOs identified in 2002 “have been entirely or significantly addressed,” implying that continuing dissatisfaction with the post-MCA of 2009 military commissions must be due to “moving goal posts.”  That’s not true.  In fact, despite Jack’s claims, he doesn't thoroughly address whether the deficiencies we identified have been sufficiently ameliorated or eliminated.  Let’s take a look at some of the metrics we identified in 2002:

  • Unlawful Scope of Jurisdiction:  Jack states that the “scope of jurisdiction over persons is much tighter” in the MCA of 2009, but fails to consider whether it’s tight enough.  We don’t categorically oppose military commissions, but the question of jurisdictional scope is a crucial one and goes to one of main continuing flaws of the commissions.  Military commissions are born of military necessity and may be appropriate venues in battlefield situations, but not when ordinary courts are functioning without obstruction and capable of exercising jurisdiction.  Further, since these commissions are being put forth as law of war commissions, there remain concerns that the personal jurisdiction provisions continue to fail to ensure that only those sufficiently connected to armed conflict are subjected to trial by commission.  Specifically, the MCA of 2009 continues to allow trial of those who “purposefully and materially support” or are determined to be “part of” al Qaeda – individuals whose connection to armed conflict might in many cases be insufficient to justify trial by military commission.  The discriminatory, exclusive application to foreign nationals is an equally problematic aspect of the personal jurisdiction requirements.  With respect to subject matter jurisdiction, Jack downplays the fact that many offenses in the MCA of 2009 (material support and conspiracy, for example) are not law of war violations despite that fact that most military commissions prosecutions to-date have heavily relied on these offenses.  Some individuals have also been tried for offenses alleged to have occurred prior to 9/11, calling into question whether there was even a relevant armed conflict to which the commissions’ jurisdiction could attach in these cases.
  • Lack of Independence and Impartiality:  Jack writes that “[a]ll of these concerns have been addressed” though there do remain some potentially consequential differences between military commissions and courts martial practice in this regard.  The bigger issue is that the “command influence” problem inherent in military justice system likely offends international standards requiring independence and impartiality in the judicial process.  While the concurrent roles of the convening authority are arguably justified under domestic law due to the unique and constitutionally recognized role that military justice plays in maintaining good order and discipline in the military, no such justification exists for military commissions designed to try civilians for war crimes.  None of this is to demean the excellent efforts of the convening authority and others working within the military commission system, but the broader problems concerning independence and impartiality remain.
  • No Judicial Review:  We agree that the availability of judicial review in Article III courts is a welcome improvement over 2002.
  • Secret Evidence:  Though we in general welcome as a step in the right direction efforts to adopt the civilian classified protection system outlined in CIPA, there’s more to this than whether the classified information protection rules are modeled on Article III court rules.  Regarding how evidence and information is handled, current military commission rules and practice remain highly problematic.  Defense counsel have on repeated occasions had a very difficult time securing discovery and, relatedly, government practice with respect to protecting classified information has gone too far.  Despite improvements in the law, the more permissive hearsay rules – as well as rules that could allow admission of coerced evidence (obtained at the point of capture or through the fruits of abusive interrogation) – remain unjustified and only amplify the sense that evidence obtained from torture or other abusive practices may be admitted at trial.
  • Denial of Effective Assistance of Counsel:  Jack writes that “[n]obody who has read Lawfare’s coverage of military commission proceedings can doubt that detainees are receiving first-rate counsel from well-staffed defense teams.”  There’s no question that both defense counsel and military commission prosecutors are professionals doing the best they can under the circumstances.  But it’s an open question as to whether the resources available to defense counsel are sufficient, or whether the rules allow defense counsel to zealously advocate on behalf of their clients.  For example, the National Association for Criminal Defense Lawyers recently put out an advisory opinion stating that defense counsel would be violating their legal ethics requirements if they followed the guidelines of a recent GTMO protective order.  (That issue has been resolved in the case in question, but could arise in other cases.)
  • Indefinite Detention:  Jack writes that “[m]ilitary detention at GTMO is now expressly authorized by Congress, has been approved by federal courts in the D.C. Circuit, and is subject to Supreme Court review.”  All of that is true, but it doesn’t follow that the current indefinite detention scheme is in compliance with international law, which is primarily what we were concerned about in 2002 and remain concerned about today.
  • Death Penalty:  As Jack notes, the basis for concern about use of the death penalty renders many of the important improvements inconsequential in the grander scheme of things.
  • Lack of congressional authorization:  It’s true, the military commissions have been authorized by Congress twice, and while it’s nice that Congress has chosen to engage, it doesn’t follow that using military commissions in this context is lawful or wise policy.

Bottom line: the law and procedures undergirding the military commissions have improved substantially since 2002, but many of the main problems we identified then remain problems today.

I think the big question is why, as a matter of policy, the government continues to insist on using untested military commissions for international terrorism cases when Article III courts have proven more than capable of handling these same kinds of cases for well over a decade.