Obama Appears Poised to Renew Military Commissions
President Barack Obama (WDCpix)
Recent reports quoting anonymous officials within the Obama administration suggest the president is considering reviving the same military commissions that he called “an enormous failure” as a candidate and that were created by a law he voted against when he was a U.S. senator. Some of the rules would reportedly be rewritten to limit the use of coerced evidence and to otherwise offer more rights for detainees.
The news has come as a shock to many defense lawyers. In one of his first official acts as president, President Obama asked military prosecutors to seek a 120-day suspension of the military commissions so that his staff could review their procedures and the cases before them. To most observers, that suggested that President Obama planned to eventually abolish an institution created by President George W. Bush that, like the detention center at Guantanamo Bay, Cuba, had become an international symbol of U.S. arrogance and lawlessness. But The Washington Post reported that the Obama administration may ask for another 90-day suspension (the current one expires on May 20) and then restart the commissions in the United States.
Illustration by: Matt Mahurin
Created by the Military Commissions Act of 2006, the commissions were charged with trying “enemy combatants” for war crimes, and provided much more relaxed rules of evidence that would permit the admission of hearsay, coerced evidence, and secret evidence never shown to the defense. Such evidence is not permitted in U.S. federal civilian courts, or in regular U.S. military courts, because it is considered inherently unreliable and violates a defendant’s right to confront the witnesses and evidence against him.
Although in court documents the administration said only that the military commissions procedure would be “reviewed”, leaving open the possibility that they could be revived in some form, most lawyers representing detainees assumed that the commissions had been so maligned and were so widely considered a failure that they would never be revived.
But the commissions were never completely dismantled, and, in fact, continued despite the administration’s suspension of the trials. In the case of Ali Hamza Ahmed Sulayman al Bahlul, for example, an alleged al-Qaeda media director who was convicted and sentenced to life in prison by a military commission in November after he boycotted the trial and refused to present a defense, the government is now seeking to “finalize and approve his conviction and sentence,” said David Frakt, his military defense lawyer. The commission’s “convening authority” can either approve the conviction and sentence, or can amend it or grant clemency. “It’s interesting that they continued to press forward despite the suspension,” said Frakt.
Then last week, The Miami Herald reported the appointment of a new chief prosecutor, John Murphy, also suggesting the Obama administration plans to continue the commissions. Murphy was among the team of military prosecutors in the case of Salim Hamdan, Osama bin Laden’s driver. That case is not widely considered a success, however. Prosecutors had argued for a 30-year sentence, but Hamdan was convicted last summer only of supporting terror, rather than committing any terrorist acts, and sentenced to time served plus less than six months. He returned to his native Yemen last year.
Pentagon spokesman Commander Jeffrey Gordon would not confirm or deny the report about Murphy’s appointment, or about whether the military commissions will be revived.
But there are other suggestions that they will go on. On Thursday, a military judge ordered that a hearing in the military commission case of Ahmed Darbi, accused of being a member of Al Qaeda in large part because his brother-in-law was one of the 9/11 hijackers, will go forward as originally scheduled on May 27. Darbi’s lawyers had asked for the hearing to be delayed until July to give the Obama administration time to decide how to proceed with his case, which they claim is unfounded. Darbi says he was tortured at the Bagram air base in Afghanistan, and witnessed the beating to death of a Bagram detainee whose murder by interrogators was later confirmed in a Defense Department report.
On Tuesday, Darbi’s lawyer confirmed that the hearing has been set for May 27, though he cautioned that this was the decision of the judge handling the case, not of policymakers in the Obama administration.
“The president has the authority to pull the plug on this,” said Ramzi Kassem, Darbi’s lawyer and a teaching fellow at Yale Law School. “Our position has always been that even with a very fair military judge and with highly intelligent and impartial military jurors, the military commission system is rigged and cannot be fair to the accused.”
The primary objections of lawyers like Kassem are that the Military Commissions Act allows for the introduction of evidence obtained by abusive interrogations; for arguments and evidence presented by prosecutors secretly to the judge without the involvement of the suspect or his lawyers; and multiple layers of hearsay – essentially, rumor – none of which would be admissible in either civilian federal courts or in military courts martial, which follow the Uniform Rules of Military Justice.
Because of these rules, and the way they were applied in particular cases, several prosecutors for the military commissions resigned in protest during the Bush administration. In at least one case, the convening authority dismissed the case because the evidence was obtained by torture. In another, the judge suppressed the confession. (The government appealed.)
“No one should be tried in these courts,” says Kassem. “They were set up for one reason alone: to whitewash torture.”
Michael Scharf, a law professor at Case Western Reserve University and expert on international war crimes tribunals, agrees that revival of the military commissions “would be such a mistake.”
Scharf testified to Congress when it was debating the Military Commissions Act that in international war crimes tribunals, hearsay evidence is often admissible. But he said it should not be in U.S. military commissions. “The hearsay rule is there to protect evidence from a lay juror,” said Scharf. “Lay jurors will weigh hearsay evidence more strongly than a judge will. Hearsay evidence is unreliable because it’s not under oath and it’s not subject to cross examination. Inherently, judges get that hearsay is not good evidence. But lay jurors don’t. So that’s whey we have the rule against it in federal court, but that rule is not needed in international tribunals.”
Although the military commission is made up of officers, they’re not legally trained and don’t have years of judicial experience. “They’re more like a jury,” says Scharf. “So you wouldn’t want hearsay.”
Frakt, the military defense lawyer who’s representing two detainees before military commissions, said that even if the Obama administration improves the commissions by changing some of the rules, it won’t solve the problem. “They can certainly improve the commissions by changing the regulations but I don’t think they can get them to the point where they will achieve international acceptance,” said Frakt.
“Obama talked about making a change, a break from the past. So if he suddenly says we can proceed under the Military Commissions Act and just tinker at the margins, that will be perceived as really selling out his principles for political expediency,” said Frakt. “The idea that ‘oh, well, you know, we looked at trying these people in federal court but it was too hard, so we’re going to use military commissions,’ that’s absolutely appalling.”
Reports in The Washington Post and The New York Times quoted anonymous government sources saying that the Obama administration was realizing that it would be too difficult to obtain convictions against many Guantanamo detainees in regular civilian courts or in the court martial process.
“I think it would be a terrible mistake,” said Jonathan Hafetz, a lawyer for the American Civil Liberties Union’s National Security Project who has represented several detainees at Guantanamo Bay. “There’s no legitimate reason to use the military commissions rather than the federal court system.”
The idea that terrorism should be treated as a military matter is a holdover from the Bush administration, said Hafetz. Although the Supreme Court ruled that Guantanamo detainees have the right to habeas corpus, which the Bush administration opposed, some government officials are “still fighting for military commissions.” Hafetz said the Bush administration “never believed federal courts should be involved at all and fought tooth and nail against any kind of judicial involvement.”
Many legal experts are particularly concerned about how reviving the military commissions created by President Bush will be perceived around the world. “The commissions have been so tainted, they were seen internationally as created as a way to circumvent the law,” said Scharf. “The civil rights community in the United States decided that the military commissions were the new civil rights cause of the day. I don’t think you can get around that. There will be so much criticism no matter how you tinker with it.”
And international credibility is critical to fighting international terrorism, said Scharf. “We really need the international community’s assistance,” whether to trace international financing for terrorism or to get other countries to surrender suspected terrorists to us. “If you want international cooperation you have to go in a different direction,” said Scharf.
Even those who think the military commissions could have worked had they not been manipulated by political officials in the Bush administration don’t think they can work now. One former prosecutor who resigned from the commissions but did not want to be named told TWI that “now, seven and a half years later, the process has been stuck in mud the entire time. I’m afraid just the title ‘military commission’ is almost like saying ‘Guantanamo Bay’. It has such a negative connotation attached to it, that even if you spruced it up, it will be viewed with suspicion,” he said, adding: “It’s as important to be seen as doing justice as to be doing justice.”