Still a Bad Idea: Military Commissions Under the Obama Administration

David Glazier is a Professor of Law at Loyola Law School in Los Angeles.  He has written, under the same title as this post, a paper critiquing U.S. military commissions which you can download from SSRN here.

As the Senate considers an outright ban on the transfer of detainees from Guantánamo to the United States this week, it seems obvious that many proponents intend that this will lead to military commission trials of “high value” detainees held there. Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic “convictions” at Guantánamo, the myth that military commissions are a superior forum for trying terrorists inexplicably persists. The media spin on the recent federal trial of Ahmed Ghailani has further fueled this erroneous perception. Although Ghailani, who is not a high-level al Qaeda figure, now faces the real possibility of life in a supermax prison, critics and mainstream media describe the case as a “near acquittal” rather than the substantial victory it represents. Despite popular perceptions to the contrary, it is the military commissions which pose the much higher risk of failure in terrorism trials. The commissions have serious legal flaws which provide a number of grounds on which any convictions they render may be overturned, their ad hoc courtroom proceedings have regularly proved embarrassing to objective observers, and the controversy generated by their continued use will predictably have adverse consequences for U.S. national interests.

All five completed commission cases have involved highly questionable applications of substantive law. While the Military Commission Acts of 2006/2009 define offenses the commissions can try, they depend on these being pre-existing war crimes to avoid both U.S. constitutional and international prohibitions on ex-post facto crime creation when applied to detainees who were already in custody when the laws were passed. Yet virtually all LOAC experts agree that the primary offenses charged to date, conspiracy and providing material support to terrorism, are not crimes that can validly be prosecuted by a law of war tribunal. Omar Khadr was charged with additional offenses, including murder in violation of the law of war which could be war crimes in ordinary conflict scenarios, but not as applied to him. Three of the five cases – those of David Hicks, Ibrahim al Qosi, and Khadr – were resolved by plea deals in which the defendants had to waive all right to appeal even though that is forbidden by the court-martial practice on which the commissions are supposed to be based, so their infirmities will not be subject to appeal. Salim Hamdan, in contrast has appealed his conviction but although he has been free for almost two years, his case has still not even gotten through the first tier Court of Military Commission Review (CMCR), mocking the idea that military judges will administer justice more efficiently than their civilian counterparts. Although Ali al Bahlul refused to allow his attorney, David Frakt, to mount any defense on his behalf at all, Frakt nevertheless preserved some issues for appeal that also have yet to be decided at any level. The MCA provides for cases surviving the CMCR to be heard by the regular Court of Appeals for the D.C. Circuit, with the potential for both Supreme Court consideration as well as collateral review once direct appeals are complete. So these cases will be litigated for years to come.

While the substantive law issues alone should be sufficient to both overturn these past cases and derail many future charges, there are a slew of additional issues stemming from unique aspects of the commission process that provide additional grounds for challenge which are wholly lacking from federal trials. Key World War II precedents, for example, only uphold the authority of military officers to convene law of war commissions in the theater of their command and try violations committed during the interval from the “declaration of war” until the conclusion of a final peace treaty. It is thus questionable as to whether any pre-9/11 conduct can validly be tried by the commissions. There is also reason to doubt that a civilian official without any command authority can perform the multiple roles assigned the convening authority thousands of miles removed from the “theater” in which the conduct took place.

There are numerous other flaws including the inability of the defendants to select counsel they trust, the tribunals’ reliance on over-classification practices, use of evidence obtained through coercion despite the statutory ban on doing so, and lack of equal access to witnesses and flawed discovery processes that collectively undermine the ability of defendants to mount credible defenses. The use of substandard tribunals to try aliens which we are wholly unwilling to submit our own nationals to is entirely unprecedented in the history of U.S. military justice and provides the potential basis for an equal protection challenge. If reviewing courts are committed to justice, any of these flaws by themselves could form the basis for overturning convictions. Collectively they will undermine the credibility of any verdicts returned, chilling counter-terrorism cooperation by our friends and allies, while fueling recruitment and fund raising by our adversaries.

The Ghailani trial in contrast, saw the application of recognized charges and rulings that time in military custody does not violate speedy trial timelines and that detainee abuse does not require dismissal on the basis of outrageous government conduct. Although a district court decision is without formal precedential value, it is predictable that other federal judges would reach the same result. The idea that military commission rules offer any legitimate advantage over federal courts is simply wrong. While Ghailani’s judge did exclude one witness the government desired to use on the basis that he had been identified through coercive interrogation, military commission rules should have produced the same result. In general, military commission rules for handling classified information are now very closely based on those used in federal courts, while issues such as battlefield intelligence collection concerns are total red herrings – the Supreme Court holds the 4th Amendment inapplicable outside the U.S.

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