Ex-Military Commissions Prosecutor Says the System Is Unsalvagable

In my just-published piece on the Obama administration and Congress’s plans for military commissions, I quote a former military-commission prosecutor, U.S. Army Reserve Lt. Col Darrel Vandeveld who’s an unlikely commission opponent. A former true-believe in the widespread guilt of the Guantanamo detainees, Vandeveld ultimately resigned from the commissions last September after suffering a crisis of conscience over prosecuting Mohammed Jawad, whom Vandeveld came to believe was innocent of throwing grenades at U.S. troops in Afghanistan as a juvenile.

The administration and congressional changes to the commissions are “cosmetic,” Vandeveld told me, as they’ll still provide for hearsay evidence (albeit in restrained form) and a measure of coerced testimony. The commissions depend on a empaneling  military officials  who have “no special expertise in the law to determine what weight to give that evidence,” he says. “In my mind, that’s too heavy a burden.”

But Vandeveld doesn’t stop with the military commissions. He rejects the entire administration contention that there’s a true class of detainees who are too dangerous for release and also can’t be successfully prosecuted, the backbone of the argument for preventive detention. “Much of the estimation of the future dangerousness of certain detainees at Guantanamo is based upon the very hearsay that should be condemned,” Vandeveld says. “Oftentimes, it’s based on statements made by the detainees themselves. It defies logic to say on one hand that a detainee intent on being jihadist, inflicting harm on America, and acknowledges his past misdeeds and then you can’t subject him to trial and convict him. Of course you can. … Someone like that could be court martialed.”

Nor was Vandeveld impressed by Pentagon General Counsel Jeh Johnson‘s suggestion today that the administration could conceivably detain people acquitted of terrorism charges. “If someone is acquitted, then, as we do today, we should release him,” Vandeveld says. “I know the president has said he does not want release someone who’s a threat to the American people. As a prosecutor of 20 years, I can tell you that happens every day in the U.S. — the recidivism rate is huge. It’s worse than people want to think about. But it’s worth the risks that one has to take if one believes in democracy and the rule of law. There are two systems already in place [for dealing with dangerous people]: military courts martial under the [Uniformed Code of Military Justice] and Article-3 [federal civilian] courts. There’s no reason to lower our standards to obtain convictions would not obtain otherwise.”

Vandeveld is scheduled to testify tomorrow morning about military commissions to a House Judiciary subcommittee. It should be worth watching.