Last week, Defense Secretary Robert Gates suggested that as many as 100 individuals currently detained at Guantánamo could be transferred to U.S. soil and held without trial. Secretary Gates stated, "The [military] commissions are very much still on the table."
News reports say that the administration may seek an extension to the 120-day review period (up in less than three weeks) that the president mandated with his executive order halting the military commissions and ordering the closure of the detention facility at Guantánamo. Some reports suggest that the Obama administration may use this time to tweak the existing military tribunal system.
Closing Guantánamo is an empty gesture if we simply replace it with another detention center on U.S. soil that disregards the law by resurrecting the fatally flawed military commission system. Military trials for suspected terrorists at Guantánamo are inconsistent with the fundamental tenets of American justice and U.S. treaty obligations. As ACLU attorney Jonathan Hafetz said, "The whole purpose of creating military commissions in the first place was to sustain a system of torture, illegal detention, and government secrecy. There is simply no need or legal basis to create an alternative to the existing system of prosecuting suspected terrorists in the federal civilian courts, which has demonstrated its ability to protect both constitutional rights and national security."
Any delay in the review process would also mean that legal action on detainee cases would remain frozen.
Here is more tangible example of what that means.
Individuals like our client, Mohammed Jawad, captured when he was possibly as young as 14 years old, remain in legal limbo. The ACLU and military co-counsel Major David Frakt represent Jawad in a habeas petition challenging his detention in federal court. A few weeks ago, Major Frakt visited Jawad, and upon his return from Guantánamo wrote:
I recently visited Mohammed. (We try to visit him at least once a month to update him on the progress on the case and to try to keep his morale up when there is no progress to report.) Mohammed finally is starting to have some hope that he may be released sometime soon and see his family again. During our visit, the psychologist that accompanied me asked what his plans were. He said, "You are a doctor, you help people. Major Frakt is a lawyer, he helps people. When I get out, I want to get an education so I can help people. I want to be a doctor and take care of the people in my country." Somehow, through six and a half years of captivity in some of the harshest conditions imaginable, Mohammed Jawad has not only retained his basic humanity and goodness, but has matured into a fine young man that I am proud to call not only my client, but my friend. I can only imagine how he would have flourished if he had been afforded the rehabilitation and reintegration services guaranteed by the Optional Protocol for the Involvement of Children in Armed Conflict which the Bush Administration decided to ignore, like so many other treaties governing armed conflict. The idea that Mohammed poses any threat to the United States is laughable.
Jawad is one of two prisoners the U.S. is prosecuting for war crimes allegedly committed as a child, under the Bush administration's failed and unconstitutional military commissions. His alleged "confession" — obtained by Afghan forces who threatened to kill him and his family if he did not confess — raises alarm because it was found by a military judge to have been obtained through torture, and is therefore inadmissible at trial. In fact, Jawad's former lead military prosecutor, Lt. Col. Darrel Vandeveld, left the military commission in September 2008 because he did not believe he could ethically proceed with Jawad's case. He submitted a 14-page statement in support of the ACLU's challenge, describing the torture Jawad suffered in U.S. custody, and stating that the flaws in the commission system make it impossible "to harbor the remotest hope that justice is an achievable goal."
His case clearly illustrates many of the problems with the unlawful military commissions. As the New York Times explains it, Jawad's case is "emblematic of everything that is wrong with Guantánamo Bay."
It would be a grave error and a huge step backward to revive any aspect of the Bush administration's fatally flawed military commissions system that was specifically designed to evade due process and the rule of law.
(For more on the Obama administration's progress on closing Gitmo, check out journalist Andy Worthington's thoughtful review in light of the new administration's 100-day mark).