The New Guantanamo Military Commission Debate

By Victor Comras

There doesn’t seem to be much going anymore for the Guantanamo Military Commission. Its utility, function and procedures are being challenged from all sides, including from the inside. General public condemnation of the process is growing here and abroad, the Supreme Court has decided to review its operation, legislation has been proposed to scrap it, and the senior Military Commission Judge, himself, has challenged the Commissions jurisdiction. The debate has moved beyond the question of whether we should sacrifice some of our basic principles of justice and fair play in order to counter possible terrorist threats. Rather, there's a growing perception that the Military Commission process, which does involve sacrificing such principles, provides little, if any, offsetting real benefits to our war on terrorism. To-date, its work has produced only one guilty verdict – David Hicks, an Australian Citizen who has since been transferred to serve his jail time in an Australian civilian prison. But it has also produced international and domestic condemnation, and a loss of respect for America's commitment to justice and fair play. And nowhere is this condemnation louder, than from the American legal community itself.

From the outset, the Guantanamo Military Commission had to adapt its procedures to the very distinct and secretive environment that permeated Guantanamo. The prisoners were deprived of Court Counsel until late in the process, they were unable to choose their own court representatives, unable to question witnesses or to test the credibility of the evidence against them, and, in fact tried by their accusers. The appeal process lacked any real judicial oversight and was basically flawed. The writ of Habeas Corpus – The Great Writ – was unavailable to them. The process of detention that preceded trial was also very different from what we expect from our own judicial detention system. The prisoners were held incommunicato, denied legal counsel, and questioned using techniques that bordered (and some say crossed the line) on torture. The purpose of interrogation was not to determine guilt or innocence but to extract as much information as possible from each detainee that might be useful in the war on terrorism. The Geneva Conventions were deemed inapplicable -- our interrogators wanted more than name, rank and serial number. None of these procedures would ever be condoned in a US court of law. And many of lawyers, military and civilian, that were called upon to operate the Military Commissions balked. Below are a few of the stories of military lawyers that have stood up to challenge the system.

One such attorney, Lieutenant Colonel Stephan Abraham, US Army Reserve, played a key role in convincing the U.S. Supreme Court to reconsider its April 2007 decision denying certiorari for two cases which involved the operation of these military tribunals, Boumediene v Bush and Al Odah v United States. His description of the severe impediments placed by the military in the path of those defending accused terrorists helped convince the Supreme Court that it needed to take a closer look at these Military Commissions. (see my July 3rd Blog). He was subsequently relieved off all duties related to the Guantanamo cases.

Then there is Navy Lt. Commander Charles D. Swift who was assigned to represent Osama Bin Ladin’s driver, Salikm Ahmet Hamdan. He challenged his superiors and convinced the Supreme court that the Military Commission, as then constituted, violated the Uniform Code of Military Justice. Swift won his challenge in court, but was passed over for his final up or out promotion by the Navy. As a result of the Supreme Court decision, Congress passed the Military Commission Act which did away with many of the abuses. But, it fell far short of insuring basic fairness. Prosecutors continue to be able to withhold crucial evidence, to use coerced testimony, and to keep the sources of evidence secret and their credibility unchallengeable. The Hamdan Case was also again put on hold in June 2007 pending a new review of the Military Commission's Jurisdiction.

There is also Marine Major Michael Mori who was assigned to defend Australian terrorism David Hicks. He complained vocally about the lack of basic procedural and other evidentiary protections required for any fair trial and in March 2007 was himself accused by the Chief Prosecutor in the Guantanamo Military Commissions of breaching Article 88 of the Code of Military Justice for disparaging the Military Commission system.. Following Hicks' departure from Guantanamo Bay to complete his sentence in Australian Prison, Mori was re-assigned from Guantanamo. He has been passed over for promotion twice since taking on the Hicks case.

Several Prosecuting Attorneys have also chosen to sacrifice their careers rather than condone the system of justice being meted out by the Military Commissions. Army Captain John Carr, Air Force Major Robert Preston amd Air Force Captain Carrie Wolf both requested transfers to other assignments because of their stated concerns that the military commission proceedings were innately unjust.

There is also the story of Colonel Will Gunn, an Air Force JAG Officer reportedly in line to become the first African American Judge Advocate of the Air Force. Upon accepting his assignment to the position of overseeing the military lawyers assigned to defend the Guantanamo detainees he handed in resignation papers to be effective at the end of that assignment. He explained “what we’re doing is far more important that anyone’s career. I can’t ask people to do what they’re going to have to do if I’m protecting mine.”

Perhaps the reader of this short oped, and those now considering the future of the Military Commission might recall the following apt dialogue between Sir Thomas More and William Roper from Robert Bolt's classic pay - A Man For All Seasons:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

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