Military Commissions Debate Rages On in Senate

David Kris and Sen. Jeff Sessions (R-Ala.) (Senate Judiciary Committee, WDCpix)

Last week, President Obama’s detention policy task force issued its preliminary recommendations on the prosecution of Guantanamo detainees. But as a Senate Judiciary Committee hearing on Tuesday afternoon revealed, there’s little consensus in Congress over where and how to prosecute terror suspects, or the likely consequences of the various alternatives.

According to David Kris, assistant attorney general in the national security division of the Justice Department, the task force is “more than half way through its review of the 240 detainees” at Guantanamo, and expects to complete its review by October 1.

Illustration by: Matt Mahurin

Democrats, like the Obama administration, largely support trying most Guantanamo detainees as criminals in civilian federal courts in the United States. In questioning led by Sens. Richard Durbin (D-Ill.) and Benjamin Cardin (D-Md.), they seemed at least open to the idea that the use of military commissions might be acceptable in certain limited circumstances where the key evidence is classified or otherwise couldn’t be introduced in a federal court.

Republicans, on the other hand, through questioning led by Sens. Jon Kyl (R-Ariz.) and Jeff Sessions (R-Ala.), seemed largely skeptical of relying at all on the federal criminal justice system to try Guantanamo detainees. They worry that will give dangerous terrorists too many constitutional rights, including the right to be released into the United States if they’re not convicted.

The weaknesses in both sides’ views became apparent in Tuesday’s hearing.

For the Democrats, the lack of clarity regarding where detainees will be prosecuted threatens to undermine the entire proposal.

“There is a presumption, where feasible, that cases will be prosecuted in federal court,” said Kris. “But that presumption can be overcome if circumstances make it more feasible to prosecute in a military commission.” Those “circumstances” are not “abstract bright line rules,” however. “That flexibility we submit is the most effective way to defeat the adversary consistent with our core values,” he testified.

The factors relevant to the determination, as laid out by the task force, include “the nature of the offenses to be charged, the identity of the victims of the offense, the location in which the offense occurred and the context in which the defendant was apprehended, evidentiary issues, and the extent to which a forum would permit a full presentation of the accused’s wrongful conduct, among others.”

The idea, said Kris, is “we’re going to evaluate these cases one at a time in a very fact intensive way.” How many cases would likely be tried in either kind of court is impossible to predict, he added.

Michael Edney, a Republican witness and former legal adviser and deputy general counsel to the National Security Council, argued that leaving that choice to depend on a broad variety of factors would undermine the legitimacy of the entire process. The “presumption of criminal trials” set out in the task force report “may be a threat to the integrity of both the federal criminal system and the military commission system,” he testified. Edney reasoned that the choice suggests that prosecutors should use the federal criminal system wherever possible, but when the evidence is weak or “makes such trials difficult,” then prosecutors can use the military commisions. “The message would be that those commission are a type of secondary justice,” he said. Edney argued that the government should designate a class of cases to be tried in one system or another.

That’s directly contrary to the Obama administration’s case-by-case approach.

Meanwhile, testimony from Democratic witnesses strongly favored the presumption of Article 3 federal court trials, which they insisted have the ability to handle classified and sensitive evidence and the international credibility that a new commission system would lack. David Laufman, a former federal prosecutor and Justice Department official, testified based on his experience prosecuting difficult terrorism cases that the challenges many Republican senators implied were insurmountable — the need to use classified evidence, collect evidence abroad and rely on non-coerced testimony — have all been handled adequately by the federal courts.

In the case of Ahmed Omar Abu Ali, for example, a defendant originally arrested and detained in Saudi Arabia, Ali claimed that his detailed confessions were the result of torture by Saudi authorities. “For the first time in Saudi history, the Saudi Government permitted Saudi security officers to testify in an American criminal proceeding and face rigorous cross-examination by U.S. defense attorneys, thereby enabling prosecutors both to obtain direct testimony about the defendant’s admissions and to rebut his claims of mistreatment by Saudi authorities,” said Laufman. Other equally difficult cases, he and others testified, have led to a strong record of hundreds of convictions of terrorists in U.S. federal courts, as opposed to only three convictions in the military commissions created by the Bush administration.

A report released last week by Human Rights First, based on the analysis of two former federal prosecutors, similarly concluded that federal courts can handle most terrorism cases.

Still, Laufman agreed that some cases ought to be prosecuted by military commissions depending on “what is the admissible evidence in the case and can the government meet its obligations and sustain a prosecution?”

Sen. Jon Kyl, for his part, was focused on whether detainees who are tried in federal court in the United States and found not guilty, or who complete their sentences, could be released by court order onto U.S. soil. Laufman and other witnesses said that their release into the U.S. would be prevented by the immigration laws. “There’s no time limit by law on how long the U.S. government can detain people under the alien removal statute where there are national security grounds to do so,” said Laufman.

Another problem with the presumption in favor of Article 3 courts that bothered Republicans was their insistence that the U.S. military and FBI would have to issue Miranda warnings to every suspected al Qaeda operative before questioning him.

Miranda warnings “can be problematic,” said Sen. Sessions.”We are in a state of war,” he said. “We’re dropping bombs on people right now” and “we have a lawful right to do that.”

“Good intelligence is critical,” he added. “Don’t you think that if we expand and continue to provide more and more Miranda warnings we’re going to diminish intelligence because anybody would not talk if they’re told that up front?”

Jeh Johnson, General Counsel for the Defense Department and a witness at the hearing, attempted to clarify.

“I understand that there’s this perception out there that the US military is out there reading Miranda warnings to terror suspects. It’s just not true,” he said. “The FBI is providing Miranda warnings in a very few cases in order not to foreclose prosecutions. But the United States Military is not reading Miranda warnings to people they capture.”

“Isn’t that a danger?” Sessions persisted.

Kris responded that even the FBI rarely gives Miranda warnings to terror suspects abroad. “Of the thousands of interviews conducted by the FBI in Afghanistan, Miranda warnings have been given in less than one percent of cases,” he said.

Sessions was not satisfied. “Bit if you’re going to try them in civilian courts aren’t we in a position where more Miranda warnings will be given?”

Ultimately, as with most of the questions concerning where detainees would be tried and what rights they’d be due, the administration witnesses responded that these matters will be decided on “a case by case basis.”

That’s not likely to satisfy many members of Congress, however, who have so far stymied the administration’s efforts to meet its pledge to close Guantanamo by January. In May, the Senate voted to block funding to allow the administration to transfer any Guantanamo detainees to the United States, even to be housed in maximum security prisons. Democrats supporting the resolution said they needed more information about the administration’s plans.

The administration is expected to complete its case-by-case review of the detainees’ cases by October. Yesterday, Johnson testified that the administration still intends to close the Guantanamo Bay prison by January, as President Obama promised: “We remain committed to meeting that deadline.”