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Reporting from Guantánamo: The five uns

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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July 23, 2012

In Guantánamo Bay last week, I had an enlightening opportunity to talk with Brigadier General Mark Martins—the Chief Prosecutor of the military commissions—along with a handful of other NGO observers of the commissions. There was no agenda for our meeting, but we quickly launched into a vibrant discussion of the wisdom and legality of the military commissions.

General Martins helpfully framed the discussion with his summary of the main objections to the commissions. They are what he calls the five uns, and they fairly capture the ACLU’s main concerns: that the commissions are “unsettled,” “unfair,” “unnecessary,” “unknown,” and “unbounded.”

Briefly and as described by General Martins, those arguments are that the law of the commissions is unsettled because the system is new and untested; that the new rules are unfair because they deviate from the tried-and-true procedural protections of the courts-martial and federal courts; that the commissions are unnecessary because our federal courts are open and expert in handling terrorism prosecutions; that the commissions are unknown because they permit too much secrecy, particularly with respect to allegations of torture; and that the scope of military jurisdiction is unbounded in our government’s claim of a geographically and temporally unconstrained conflict with al-Qaeda and undefined “associated forces.”

General Martins methodically responded to each of these objections. Although I was heartened by the thoughtfulness of his observations and his obvious sincerity, I largely disagreed with his explanations. I had a number of specific disagreements. For example, it is true, as he said, that the commissions can turn to federal court precedent for guidance with unsettled legal questions, but that precedent is not binding, and often there is no precedent on point, especially given the novelty of some aspects of the commissions. Thursday’s hearing in the case of Abd al-Rahim Hussayn Muhammad al-Nashiri provided a perfect example. In the midst of discussing Mr. al-Nashiri’s motion to withdraw the charges against him, the prosecution and defense vigorously debated the meaning of the new military commission rules on jury selection. So complicated was the matter that the government’s argument relied on a twelve-part statutory analysis. No federal or court-martial precedent seemed helpful, and even the presiding military judge, Judge Pohl, appeared confounded by the debate. There are other examples, but the point is that the commissions often act and look like they’re feeling their way in the dark.

Putting aside my other specific disagreements, I came away genuinely puzzled by General Martins’ approach to answering the five uns. Nearly every one of his answers relied in part on the federal courts or courts-martial. Unsettled? Just rely on federal court precedent. Unfair? But the rules are close enough to the federal rules. Unknown? Not if we use standards for classified evidence similar to those that apply in federal court.

This defense highlighted for me the importance of the third un: “unnecessary.” If the goal is simply to replicate the federal courts in Guantánamo, why bother creating a new system? Of course, the goal has never been to recreate the federal courts, and that’s the point. For example, the military commissions employ relaxed procedural protections that are untested and deeply troubling, with the apparent aim of making convictions easier to obtain and evidence of torture easier to obscure. As we have explained before, the combination of weaker hearsay rules and diluted evidentiary standards raises the possibility that a defendant will be convicted (and perhaps executed) on the basis of double or triple hearsay coerced out of another witness through questionable interrogation practices that the defense will never know about.

I asked General Martins about this concern, the second un: “unfair.” If the public and legal defense of the commissions is so heavily reliant on the federal courts, why have weaker procedural protections in the commissions? He answered that the differences in the rules are actually fairly minor. It is difficult to accept his assertion given what the rules say and even more so given what we know about the coercion used in the questioning of detainees in the years following 9/11. Perhaps General Martins intended to suggest that there would be little practical difference in the prosecution’s use of the rules under his watch. I hope that’s true, but the commissions will likely outlast the General’s tenure as the Chief Prosecutor, and when it comes to fairness and due process, our Founders preferred to rely on structural checks and balances rather than the benevolence of those in office.

General Martins also argued that the flexibility of the rules of evidence in the commissions exists to accommodate battlefield necessities. There is of course significant tension between this claim and his claim that the rules are not all that different in the commissions. And it overlooks that the large majority of Guantánamo detainees were not actually captured on a battlefield and that to date virtually none of the evidence that has been used against Guantánamo prisoners was derived from battlefield interrogations. But most importantly, it reflects an unfounded distrust of federal courts. The federal rules of evidence have been carefully calibrated through centuries of application so as to adapt to virtually every situation imaginable. Why not trust the federal courts now to properly balance the needs of the government with the rights of the accused?

Again, General Martins had a response: trying these cases in federal court would risk degrading evidentiary protections in all cases, terrorism-related or not. Lawyers have an adage for this proposition: hard cases make bad law. But it’s unclear why the small handful of Guantánamo cases would risk weakening federal law any more so than the four-hundred-plus terrorism-related cases already tried in the federal courts since 9/11. Courts in a number of those cases have wrestled with difficult questions involving overseas crimes and evidence acquired abroad. Though not perfect, the federal courts produce more legitimate and transparent results in the eyes of the American public and the world, and they can handle the Guantánamo cases without the existential crisis that General Martins predicts.

The unavoidable conclusion I drew from General Martins’ defense of the commissions is that they are either unfair (because of the weakened protections for defendants) or unnecessary (because we can prosecute the Guantánamo detainees in federal court) but more likely both. Given that reality, we should not create a new set of military commissions with untested rules to handle some of the most significant cases of our generation. And we should not allow one of the first test cases in that new system to be with someone’s life.

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