Mr. President, Tear Down that Prison

In a recent Der Spiegel interview, on the eve of her first visit to the United States, newly elected German Chancellor Angela Merkel stated that the U.S. detention center at Guantanamo must be shut down. According to Merkel, although she had no plans to demand such an action during her visit to Washington, she would not hesitate to express her opinion on this subject in the future.

Opposition to the Guantanamo facility is a policy Merkel shares with her predecessor Gerhard Schroeder. Unfortunately for the Bush administration, the change in government in Germany will obviously not eliminate the policy disputes that have significantly strained this historically strong relationship. While Bush administration supporters might dismiss these comments as another example of the inability of “old Europe” to comprehend the challenges of the Global War on Terror, Merkel’s comments remind us once again that the “Guantanamo paradigm” is considered by most allies and observers as fundamentally inconsistent with the core values of our nation.

In the interview, Merkel indicated her belief that alternate methods must be used to deal with the individuals detained at Guantanamo. Is this really such an outrageous suggestion? The answer to this question is no. In fact, the most appropriate alternate method for prosecuting captured personnel for violations of international law is one that the Germans are quite familiar with: the General Court-Martial. To this day, criminal trials are routinely conducted by such courts in Germany. Obviously, and for good cause, this type of U.S. military tribunal is considered by the Germans consistent with basic principles of justice.

Pursuant to the Uniform Code of Military Justice, the General Court-Martial is vested with jurisdiction to try any person for a violation of the law of war resulting in individual criminal responsibility. Ostensibly, this is the identical jurisdictional predicate that must be established to properly bring a charge before the Military Commission. Accordingly, there is no unique legal impediment for convening a General Court-Martial with jurisdiction over captured personnel and transferring those cases pending before the Military Commission to that jurisdiction. While characterizing the conduct of such individuals as “war crimes” is certainly controversial, it remains the sine quo non for the exercise of military jurisdiction by either tribunal. Why, then, has this option not been utilized?

While resort to a certain degree of speculation is necessary to answer this question, it is interesting to note that two of the primary justifications for the use of the Military Commission no longer seem meaningful. The first of these was speed of process. Contrary to the purpose of resurrecting this type of tribunal, in the approximate four years since that decision not one trial has been completed. While much of this delay is attributable to defense challenges, it does seem appropriate to consider whether a General Court-Martial would have in fact been more efficient. The second justification that no longer seems meaningful was the purported need for a “quasi-secret” process to protect evidence and participants. Considering the Department of Defense has willingly provided information about the legal and lay participants in the process, there seems little difference on this point between the Military Commission and the Court-Martial. As for the protection of evidence, the concern was essentially hollow from the outset, as effective procedures exist for the protection of both witnesses and evidence in a court-martial.

If timeliness and protection of participants and evidence are not meaningful justifications for clinging to the Military Commission process, what other factors might inhibit the government from adopting that alternate method called for by Merkel? Three significant differences between procedures for General Courts-Martial and the Military Commission may very well provide the answer. First, unlike the Military Commission, the Secretary of Defense would not be vested with plenary authority over the court-martial process. Instead, longstanding procedures would operate to insulate that process from any improper command or political influence. Second, unlike the Military Commission, a conviction by a General-Court Martial would be subject to mandatory judicial review by a service court of criminal appeals, and potentially by the Court of Appeals for the Armed Forces, and even the Supreme Court of the United States. Finally, the applicable procedural and evidentiary rules for the court would not be “created” by the Department of Defense, but would be the well-established rules of procedure and evidence that have earned modern courts-martial the respect of most serious observers.

Perhaps it is the absence of these important aspects of the General Court-Martial that compelled Chancellor Merkel – who has clearly expressed her determination to improve relations with the Bush administration – to so openly criticize the Guantanamo paradigm. The most feasible remedy to such criticism would be to designate an appropriate senior commander, such as the Commander of the United States Southern Command, as a General Court-Martial Convening Authority for individuals captured by U.S. forces. The current commission prosecutors could be transferred to that command. The commission defense team could be transferred to the one of the service trial defense organizations in order to maintain appropriate insulation from command influence. Finally, a pool of serving military judges from the service trial judiciary organizations could be detailed by their respective services to serve on the cases selected for trial by the commander designated as the General Court-Martial Convening Authority. Individuals could then be charged with violations of the law of war, and tried in accordance with legally established procedures. Perhaps even the Bush administration would be impressed by the outcome of such a shift in policy.