On Reviving the Commissions

There’s already been a good bit of thoughtful (see Dave Glazier) and not so thoughtful commentary about the Obama Administration’s decision to revive the commissions. I admit, news of the continuation of the commissions (in some revised form) hardly filled me with joy. But I’ve also been sorry to see rhetoric that seems to paint it at the end of the rule of law as we know it. It’s a limited solution to a problem with no good outcomes. Here’s my thinking.

First, why this decision? My best guess is the Fifth Amendment-based requirement that all statements by the defendant admitted into evidence be made voluntarily. Lemme reach back a ways to criminal procedure. This is the right Miranda (“You have the right to remain silent…”) is designed to protect – but it goes beyond Miranda. So presumably even if you read a suspect his Miranda rights, then you torture him to elicit a confession, the statement isn’t admissible. Like much of criminal law, whether a statement is “voluntary” is an inquiry into the totality of the circumstances (whether a suspect’s will has been overborne, etc.). Torture and abject cruel and inhuman treatment – now both excluded from the realm of commission admissible evidence – are probably not the only ways to render a statement involuntary. So imagine we’ve held someone in a detention facility for seven years – and imagine we’ve treated him fabulously well (let’s not complicate matters for the moment). We read him his Miranda rights after the first few years, but we’ve also made it clear to him that there’s no way he’s going anywhere anytime soon. He said on Day 1: “I am Al Qaeda and I was proud to spend 2002 shooting at Americans [under circumstances that violated the laws of war].” He said it again after he was Mirandized, and he continues to say it to this day. This is the only evidence (or information of any kind) about this guy we have. Would his statements be considered “voluntary” under the totality of the detention circumstances? Seems like one would be hard pressed to make a case in federal court that they were. I’ll be less than thrilled if a military commission concludes that they are (and even less happy – and view it as wrong as a matter of law – if a commission concludes that particular constitutional right doesn’t apply to Mr. Al Qaeda at all). But at least commission jurisprudence is its own isolated species. A decision to that effect in the federal courts – i.e. a decision that we can hold someone indefinitely up to seven years and his statements are still considered voluntary, a decision I’m guessing a federal court might well render in favor of prosecuting this guy – is precedent for everyone. So better cabin the damage and cut our losses. That’s the best argument in favor of this outcome I can make. I’m still not sure whether it’s true.

Second, now what? Well, the old commissions had some major problems. Problem 1 was the rules on paper. To the extent “rules” existed at all for the commissions in their earliest days, they were grossly inadequate, tethered neither to U.S. nor international law of any recognizable sort, and geared not toward determining guilt or innocence but securing conviction. Over time, and only as a result of years worth of advocacy inside the courts and out, by folks inside government and out, the rules on paper have come a long way from their pathetic beginning. They are still hardly perfect, and the modifications the Administration has announced it is proposing are in the right direction: no evidence based on cruel, inhuman or degrading treatment, greater hearsay protections, etc. It is hard to imagine any of this facing a quiet or unsullied road through the courts; the new commissions will inevitably confront direct and collateral challenges to the process detainees’ lawyers will appropriately bring. And how issues like the voluntariness one I discussed are handled will be important. But in the end, it is still – as it was from the beginning – possible to create a lawful set of rules for the operation of military commission trials.

That said, the military commissions as conducted under the last Administration also suffered from Problem 2, a problem quietly evident to the multiple military prosecutors who resigned from the early commission system, and unavoidably visible to all who sat in (as I did) on its early proceedings. It was clear from the outside that the prosecution was favored – clear from the lengthy fight to open the trials to any kind of public view, clear from the desks and printers and paralegals that prosecutors had (and defense attorneys did not), clear from the quality of the translators available (who may or may not have known enough of the relevant language to make proceedings comprehensible to the defendant), clear from some of the initial selected commissioners (including one officer whose responsibilities in Afghanistan included sorting and sending folks to Gitmo in the first place). After they resigned, some of the JAG prosecutors who had worked for the commissions at the outset explained it starkly: guilt was assumed, potentially exculpatory evidence seemed easily “misplaced,” and political pressure was the sense of the day.

This administration might try different cases. It might dig up all the previously “lost” exculpatory information, and do everything possible to avoid the process being one of politics rather than law. But it will be exceedingly hard to overcome the reality and the recent memory of where these commissions have been. This President is obviously acutely attuned to the importance of the perceptions of the international community. And by international community I mean not only that “community” of international lawyers, legislators, and law professors no one but OJ’ers knows, but also those people the President was worried (probably rightly) would be further enraged by more photos from Abu Ghraib. How will that community not also be further enraged by a return to Trials By Gitmo Commission – however the technical rules are improved? How to mitigate what effects of this nature there are likely to be?

In this regard, I was struck over the past few days by President Obama’s commencement addresses at Arizona State University and Notre Dame (and indulge me a moment’s digression). Both speeches had been preceded by mini-political dramas – one about whether Obama’s accomplishments to date were sufficient to justify the awarding of an honorary degree, the other about whether a Catholic university should feature a commencement speaker who was avowedly committed to protecting the lawfulness of abortion. While it would’ve been trivially easy to craft appropriately soaring speeches on such occasions that avoided any whiff of politics, Obama took both controversies head on. Indeed, in response to a heckler at his Notre Dame speech, the New York Times quotes Obama as saying: “We’re not going to shy away from things that are uncomfortable sometimes.” Even just on rhetorical grounds, I tend to think this kind of directness is one of Obama’s greatest strengths, and one of the things he does best.

The contrast between these speeches and the Administration’s public handling of detainee issues to date was pretty stark. The Administration has just made a tough decision, one that is predictably and reasonably unpopular with a lot of smart people who care about legal rights. Yet the official news came late on a Friday afternoon. It had a short statement attached. There was a quiet (reportedly unpersuasive) phone conference with human rights groups. And there’s a long, inevitable, and chronically newsworthy battle ahead (especially if reports are correct the trials will be held, as should be the case, onshore). If the goal is (as it should be) to mitigate the legitimacy problem, I’m just not sure how the bury-it-Friday approach works. It hasn’t had a very good track record as policy options in this realm go. It hasn’t worked on torture, a story that continues to metastasize day by day. And I worry whether it will work here. So what’s the downside to a different approach? One that states the commission decision boldly, embraces it, owns it, and most of all, explains it. To what extent did existing facts drive the decision? Who will gain and who will lose? What are the tough calls yet to come? What can we hope the commissions will achieve? And most of all, why are these commissions worthy of our legal faith?