Note to Col. Spath: Don’t Worry, Be Happy

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School.]

Just when we thought the Guantanamo Military Commissions could not get any more dysfunctional, this happened: defense lawyers quit the proceedings in the U.S.S. Cole bombing case. Their boss, Marine Brigadier General John Baker supported the move, and for his trouble, was held in contempt, ordered to pay a fine, and was confined to quarters. The Military Commissions’ “Convening Authority,” Harvey Rishikoff, overturned the sentence, but not the contempt ruling. For his trouble, Rishikoff was then fired by Secretary of Defense Mattis, albeit for other possible reasons that have not been made public.

The brick that broke the kangaroo’s back seems to defense counsels’ belief that their private and privileged communications with clients were in fact being monitored by the government.

Air Force Colonel Vance Spath, the man in robes* sitting behind the bench at the Guantanamo military commission’s U.S.S. Cole bombing case is at wit’s end:

“I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.’ All he was doing was telling the lawyers to listen to him and get back in court, he said. ‘Those are the extent of my orders. Not war crimes, people.”

So reports Amy Davidson Sorkin in the New Yorker.

Col. Spath is wrong, of course. While defense counsel have not directly alleged so in connection with their withdrawal, the military commissions ARE a war crime, just not in the U.S.A.

Note that Common Article 3 of the Geneva Conventions, to which every country including the U.S. is a party, prohibits trials that fail, in the somewhat archaic language of 1949, to provide “judicial guarantees recognized as indispensable by civilized peoples.” Those judicial guarantees are reflected in both human rights law binding on the U.S. (articles 9 and 14 of the International Covenant on Civil and Political Rights) and the law of armed conflict (Article 75 of the Geneva Conventions’ Additional Protocol I. The U.S. is not a party to the Additional Protocol, but has acknowledged that Article 75 is binding customary law in international armed conflict. The U.S. does not acknowledge the same for non-international armed conflict, but the similarity of the judicial guarantee provisions of human rights law, applicable in non-international armed conflict, and Article 75, applicable in international armed conflict, make that stance untenable. See more on the customary status of Article 75 in all armed conflicts here and here.)

The ways in which the Guantanamo military commissions, as part of the Guantanamo detention regime, fail to respect requisite judicial guarantees are well known:

• Government eavesdropping on attorney-client communications.
• Denial of speedy trial. The Cole bombing occurred in October 2000. The defendant, Abd al Rahim al-Nashiri, was captured in November, 2002.
• Denial of right to “confront” (cross-examine) witnesses. This is due to the general admissibility of hearsay, something only exceptionally permitted in U.S. courts.
• Possible admission of evidence gained through torture. While the military commissions claim to prohibit the use of torture-based evidence, the admission of hearsay and the failure to exclude all statements of the accused resulting from interrogation after torture (e.g., by so-called “clean teams” of interrogators) contradicts the prohibition.
• Denial of public trial. The public cannot access Guantanamo. Video and audio feeds of the proceedings are on tape delay, permitting government censors to prohibit dissemination of embarrassing evidence, such as that of the defendant’s torture.
• A corrupt plea-bargaining process. In a normal criminal court, if the accused rejects a plea-bargain offer, he or she goes to trial. If found not-guilty, he or she is free. In Guantanamo, plea-bargains are inherently coercive, since a not-guilty verdict at trial does not guarantee release. It has been said that the only way for military commission defendants to leave Guantanamo is to plead guilty.

Interestingly, all violations of Common Article 3 used to be war crimes under U.S. law. But the War Crimes Act of 1996 was re-written in 2006 to criminalize only certain parts of Common Article 3, rather than all of it. What was left out of the new law? You guessed it, conducting trials that fail to provide “judicial guarantees recognized as indispensable by civilized peoples.” And when did this happen? You guessed it, as part of legislation for the Guantanamo military commissions. The drafters of the new War Crimes Act knew exactly what they were doing, even if most members of Congress didn’t. Why, if they believed that the military commissions were on solid international law and constitutional ground, did they weaken the War Crimes Act this very specific way?

More generally, Col. Spath complained of defense counsel that:

“They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw’ . . . They had exhibited ‘lawlessness’ and ‘contemptuous behavior’; they had ‘scoffed at my authority.”

I have some sympathy for Col. Spath. If he doesn’t know that his military commissions are illegitimate it’s understandable that he’s offended by the behavior of defense counsel.

Another of his complaints recounted in the New Yorker is that defense lawyers wear informal attire in military commission sessions. I’m reminded of the Chicago 7 trial of Vietnam War protesters following the police riots during the 1968 Democratic Convention. A grumpy Judge Julius Hoffman tried in vain to maintain courtroom decorum. But the Hippie, Yippee and Black Panther defendants understood that the only effective way to approach the highly politicized trial was to contest its legitimacy through acts of civil disobedience in the courtroom. One day, one of the defendants, Abbie Hoffman, showed up in black robes!

When defense counsel in the military commissions show up in informal dress, they are, it seems to me, exhibiting the tame military version of Abbie Hoffman and Bobby Seale’s protests in 1968 Chicago. From their sartorial choices to their decision to withdraw from the case, their behavior is not only within an honorable American tradition of challenge to structural injustice, but is also rational, consistent, and indeed, necessary, to the vindication of constitutional and international human rights and law of war rules applicable to the United States.

What’s more important than what binds the Chicago 7 defendants and the Guantanamo defense lawyers is what separates them: the Chicago 7 were being tried in a real court and were under no legal obligation to protest their trial.

The “new and improved” War Crimes Act of 2006 ends with the observation that the crimes listed in the law do not define the full scope of U.S. obligations under Common Article 3 of the Geneva Conventions. In other words, the U.S., and therefore, its military personnel, are still prohibited by international law from operating unfair trials, even though the failure to do so is no longer a war crime. Rather than dissing Colonel Spath, the defense lawyers are doing him a favor by bringing these proceedings to a halt.

*No personal disrespect meant, but I can’t call him “judge.” Military commissions are not courts. The “courtroom” is not a courtroom. The “judge” is not a judge. This is clear to those who understand the pedigree of military commissions. The Supreme Court has recognized that military commissions are procedures “born of military necessity.” Historically, they have been established in war zones and situations of occupation, where normal judicial mechanisms and procedures are not operable. (See also, Ex Parte Milligan.) That cannot be said of the Guantanamo military commissions, which were set up in full view of our well-oiled federal court system, precisely to avoid application of judicial guarantees required in our constitutional courts. The Guantanamo military commissions have nothing to do with military necessity. For that reason alone, they are illegitimate.