Still a Bad Idea: Military Commissions Under the Obama Administration

by David Glazier

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.


5 Responses

  1. Wonderful post, Dave.  I tend to believe that there are no circumstances under which these military commissions can try pre-9/11 conduct (at least if unrelated to the attacks of that day).  However, I think it best to base the argument on careful interpretation of the MCA’s jurisdictional provisions rather than the the WW II precedent.  The concern I have with the latter is that the Court might decide this “common law” of military commissions has been displaced by the MCA.  (Then again, my view is that doing so would risk creating constitutional infirmities.)

  2. Bravo shipmate.  BZ

  3. Response…
    And here is our Human Rights Committee, ABILA Amicus Brief re: why the MCs are still without lawful jurisdiction.

  4. Thanks to David Glazier for this timely article.  It occurred to me that we are in a round two, round three or round n of a process of discussion of these topics.

    Fall early winter 2001 it was clear – we will learn to torture (reverse engineer SERE) and we will take those we torture out of the normal paths creating a hermetically sealed conviction machine so we can execute them.  The closest we could get to summary execution one might say.  Every iteration since the PMO is an attempt to maintain the palatability of a process structured to ensure those two things. 

    Prof. Glazier’s article is timely in coming at a time in which I am seeing other articles (second or third generation apologists) of an Associate General Counsel at CIA and a Hogan and Hartson lawyer which attempt to renew with the view that the techniques used were not torture – or at least not all of them and renewed pressure to MIlitary Commission the hell out of these people.

    Like the maw of some giant machine, everything that happens is converted and returned to us as a reason why we need to put these people in the Military Commission process.  Usually this is coming also from those who are apologists for the torture which of course they do not see as torture.

    These are like waves that seem to keep flowing across the consciousness.  The military commission good/bad wave.  The torture/not torture wave.  The deploring/complimenting the separate super-structure that has been built for the treatment of these foreigners of for the most part another religion and for the most part a different color. 

    The rainbow coalition and gender diverse group who imbibe the musings that all is right in what we do together with the rainbow coalition and gender diverse group who think we have lost our mind keep beating on each other in cycle after cycle.

    At the end of the day, I would like some day for Al-Kahtani to be brought out in the sun and interviewed.  I would like someone to explain to me how Al-Libi got from CIA detention to Egypt and then to a prison in Libya where (of course) he hung himself.

    We circle down another level into the darker space of the human soul, joining Osama Bin Laden in his dance of death.  I wonder sometimes if Osama Bin Laden is not in fact an agent of our secret services still – or Al-Awlaki – playing a double or triple agent role in gathering together people who despise the US so that they can be found and killed by the US – bees to honey.

    I am sorry for my students that have had their past ten years of adulthood being consumed by this terribly dark energy.  There are other times in which people did in fact lighten up.  Not these days.

    As the world seems to swirl toward a world war, I await the bringing of light on all of the background that we are not supposed to see.  Of the duplicities, of the speaking with fork tongues, of the mind bending all of us to think upside down is right side up.

    But, what can one know, sitting on a winter day and looking out the window.  Glazier, at least for me, speaks with lucidity in what he writes of the problematic nature of these military commissions but I doubt people hear.

    Powerful forces want these military commissions to be kept alive.  I suspect because even the muted light of a court proceeding is too much light on some very horrible dirty images.  Too many people are still alive who made their careers on building this dark space over the past ten years and who have a vested interest – whether they have moved on from government or not – in keeping their handiwork away from the public and the world’s eyes. 

    And even with that, we can train the public to avert their eyes through the 24 hour conflictonator even when things are brought out in the open.

    Ultimately, maybe at the top they ultimately really do not give much of a damn about how they pervert the people below them through their obsessions with secrecy and national insecurity.  All is – after all – about them.


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