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

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.

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M. Gross
M. Gross

At this point, it appears the government approach is simply to drag the court process on long enough the defendants die of old age.

Al-Nashiri is 53 now and has been in custody for almost 16 years. We’re still at pre-trial hearings.

Charlie Dunlap
Charlie Dunlap

Recall that the ICTY took 24 years to complete it’s work.

Also, I’m surprised to see someone of Gabor’s stature say that military commissions constitutes a “war crime” (which, of course, they do not).

Whatever their deficiencies, they are vastly more protective of the rights of the accused than the ICC or, for that matter, most such forums in the world.

That said, I would be happy to see these defendants go to Article III courts stateside. I do think that once the accused get a taste of pretiral confinement her, no-nonsense federal judges, harsh federal sentencing guidelines, and ADX Florence, military commissions will start to look so good that I would not be surprised if they turned on their lawyers.

I would also invite defense counsel to review the Lynne Stewart case.

Kevin Jon Heller

Charlie,

Gabor cited a number of “essential judicial guarantees” that are not provided by the military commissions. Which of them do you disagree with? And why?

Also, I think it is simply false to say that the military commissions protect defendants’ rights better than the ICC, whatever the latter’s flaws. I’d very much like to see your argument to the contrary. The ICC doesn’t routinely eavesdrop on defence counsel, to take only the most obvious example.

Seb
Seb

Response…Gabor,

Great, very interesting. Re: military commissions constituting war crimes, I’m sure that the USA is bound by CA 3 but not so sure that a violation of the due process provisions would constitute ‘a grave breach of Common Article 3’ (and therefore attracting individual criminal responsibility) – at least not from the link to that you provided to 18 USCode 2441 which lists the grave breaches as wilful killing, torture, etc.

Are you suggesting that a failure to ensure due process rights as mandated by CA3 amounts to torture or inhuman / degrading treatment? If not, where is the evidence that this would be a ‘grave breach’ that attracts individual criminal responsibility?

Apologies if I have misunderstood, but is this more about the US attracting state responsibility under that body of law, rather than any individual attracting individual criminal responsibility.

Seb Eskauriatza

Gabor Rona

Seb,

Thanks for your note. Yes, I think you did misunderstand. I said that given the amendments to the US WCA, conducting unfair trials is no longer a war crime under US law. There’s no such thing as “grave breaches” of CA3 in the GCs. It’s something that the US made up in order to remove from the WCA the very things that the US was doing in violation of CA3. But it certainly still is a violation of CA 3 and a war crime in both IAC and NIAC in the Rome Statute, which, as you know, was seen by the drafters as a codification of crimes under customary international law.

Gabor