Last week's military commissions proceedings in the trial of Abd al Rahim Al-Nashiri in Guantánamo Bay demonstrates the grave threat to justice posed by an ad hoc approach to a defendant's rights. Life and death decisions—Al-Nashiri could face the death penalty—mustn't be made using improvised rules, but in last week's pre-trial hearings at Guantánamo, the rules continued to be made up as the military commissions churn on.
During the course of last week's public hearings (Friday's session was ordered closed for the first time to the public and to Al-Nashiri), the commission heard argument on defense motions that implicate whether the 5th, 6th and 8th Amendments to the U.S. Constitution and basic human rights treaties like the Convention Against Torture apply to the military commissions. The arguments addressed questions including: Can the defense call witnesses without the permission of the prosecution or maintain confidential communications without government eavesdropping? Can Al-Nashiri confront witnesses and respond to evidence presented against him—including evidence derived from torture? Can Al-Nashiri be fairly tried and punished if he is excluded from secret proceedings about his rendition, detention, and torture? Many of these issues have been and will be raised and litigated in the 9/11 trials, which continue this week.
The government's answers to these questions highlight one of the most disturbing aspects of the military commissions: The government doesn't deny that the Constitution applies to Guántanamo; rather, it denies that its individual-rights protections apply.
But the government can't have it both ways.
Chief prosecutor General Martins explained the government's theory in a lengthy argument before the judge about whether the 6th Amendment's confrontation clause, which guarantees the right of the accused to challenge witnesses and evidence against him or her, applies to the proceedings. General Martins: told the judge, "[T]he Constitution applies" because "there's no power in Congress, in the President, in the courts, except that derived from the Constitution. The Constitution applies. The question is how does it apply in this particular case?" In the government's opinion, the general cautioned, "the Constitution isn't just the Sixth Amendment." Thus, he argued, "Congress may use powers under Article I [of the Constitution] that in a particular factual circumstance cause confrontation to play out differently."
In short, the prosecution argues that all of the Constitution's powers vesting Congress and the executive with the power to arrest, detain, and try Al-Nashiri (and others being tried in the military commissions) extend to the proceedings at Guantánamo Bay. But not the individual-rights protections that give Al-Nashiri the right to respond to the case that's being made against him. The Constitution isn't just Article I (which gives legislative powers to Congress) either. Fundamental rights can't be waived away or improvised piecemeal.
The right to a fair trial means, among other things, not being convicted on evidence gathered through torture; the right to challenge witnesses directly; and the right of an accused to attend his or her own trial – all of these are fundamental human and constitutional rights. The defense has fiercely argued that these fundamental rights and freedoms apply in the proceeding to take Al-Nashiri's life, and the government has zealously opposed these arguments. The judge should rule, in favor of the Constitution, that they must apply.
The fact that both sides are even arguing as to whether Al-Nashiri can invoke basic constitutional and human rights in his defense shows how ad hoc these proceedings are. Instead of directly applying hundreds of years of law and practice applying the Constitution—in federal courts—the basic rules are being made up as the commissions go along. This is a recipe for the disastrous undoing of the bedrock principles of the American legal system and respect for basic human rights.
Since they began, the ACLU has been visiting Guantánamo Bay to report on the systemic flaws in the military commissions and calling for its closure. As the trials proceed, the flaws are becoming more and more apparent.