Guantanamo: Full, Fair, and Open Trials?

By Andrew Lubin

The legal proceedings are currently controlled by the Office of Military Commissions, in which Susan J. Crawford is the convening authority. A lawyer, Crawford was appointed to the post in February 2007. The office oversees an odd amalgam of court martial and civilian court systems. It was specifically designed to handle the detainees sent to the camp. In the military justice system, the convening authority is a uniformed military commander whose responsibility covers the legal proceedings. The title exists because the military justice process is seen as an extension of command authority. Unlike her predecessor, Army Major General John D. Altenburg Jr., Crawford has no military service. She has, however, considerable experience in government under both President Bushes and President Reagan; she served as judge of the United States Court of Appeals for the Armed Forces, inspector general of the Department of Defense, and general counsel for the Department of the Army.

As the convening authority, Crawford has broad powers that include the ability to reduce or reject charges brought by her own team of prosecutors, as well as the unique authority to accept-reject-negotiate plea deals without the advice or consent of her prosecutors. She supervises a military commission that is responsible for both the prosecutors and the defense; her office approves funding requests, approves expert witnesses as requested for each defense case, and is even involved in the logistics of building and outfitting defense offices in Washington and Guantanamo.

Much legal maneuvering took place in April and May of this year that may affect the detainees' status. A military judge, Navy Captain Keith J. Allred, postponed the trial of Salim Hamdan (Osama bin Laden's driver), from 2 June to 21 July to await the result of the Supreme Court decision on Boumediene v. Bush . 2 The judge indicated that he did not want the first trial at Guantanamo to be conducted under legal assumptions that might be invalidated by the ruling. "The accused has been in confinement for six years," wrote Judge Allred, "and another month's wait will not prejudice any party to the case." 3

The Boumediene ruling issued on 12 June was yet another setback to the administration as the Supreme Court ruled for the third time that the detainees were due rights under habeas corpus that could not be denied. The immediate reaction was that the Hamdan case would be postponed, as all the detainees were expected to be filing their challenges shortly. Additionally, Hamdan's attorney, Navy Lieutenant Commander Brian Mizer announced that he would be filing a motion to dismiss the case against his client.

With the Hamdan case postponed, Proceedings interviewed one of the main figures in the upcoming Guantanamo trials: Air Force Colonel Morris D. Davis, who for two years was the chief prosecutor at Guantanamo Bay until he abruptly resigned in October 2007, citing political pressure and command interference from his superiors.

A career Air Force man and no bleeding-heart liberal, Davis has seen and reviewed the evidence first hand involving the complicity of some of the detainees regarding the 9/11 attack and their actions in Afghanistan. He is on record—while testifying for the defense in the case of Salim Hamdan—of his certainty of Hamdan's guilt, so his decision to resign and then testify for the defense is unprecedented.

 

Proceedings : Colonel Davis, why did you resign?

Colonel Davis: I told Major General Jack Rives, the judge advocate general of the Air Force, when he asked if I'd consider the job, that I was willing to do it as long as I believed we were committed to providing full, fair, and open trials. Several months later a law school student at Case Western Reserve University asked me what I'd do if I ever thought we wouldn't live up to that commitment, and I said if that time came I'd call it a day and walk away.

Well, that time came on 4 October 2007, the day the former general counsel of the Department of Defense, Jim Haynes [William J. Haynes II], was placed over me in the prosecution's chain of command. As has been aired in the media and before Congress, Mr. Haynes was one of the architects of the interrogation policy that authorized techniques that seem to be regarded as torture by almost everyone.

[Mr. Haynes, now with the Chevron Corporation, said in a statement released through his attorney, "Dealing with captured al Qaeda terrorists after 9/11 presented the United States with urgent, unprecedented, and complex challenges. One of my goals as chief legal officer of the Department of Defense was to support the Department's efforts to gather critical intelligence lawfully in order to protect the American people from further terrorist attacks." He added, "From my perspective, Colonel Davis' opinions are ill-informed."]

My policy for the previous two years had been the prosecution would offer no evidence obtained by waterboarding or any other technique that rendered the detainee's statement unreliable or contrary to the interests of justice. To put someone in command over me who thought waterboarding was perfectly legal and legitimate caused me to conclude I couldn't ensure full, fair, and open trials, so I did what I said I'd do: I called it a day and walked away.

There were some other problems, such as [Air Force] Brigadier General Thomas Hartmann commandeering almost total control over the prosecution in the summer of 2007 when he was supposed to be an independent, neutral, and objective legal adviser to the convening authority. The fiasco that caused was ultimately confirmed in Judge Allred's (May) ruling in the Hamdan case.

[Contacted through his public affairs officer by Proceedings , General Hartmann declined comment.]

And I had concerns about the convening authority, Ms. Susan Crawford, the person heading what are billed as "military" commissions but who has never served one single day in the military. It was her desire to hurry things up by using closed proceedings rather than taking the time to get evidence declassified to keep the trials open and transparent. And it was her belief that she and I should be "hand and glove" and not have any disagreements on the handling of cases, which was contrary to the prosecutorial independence Congress wrote into the Military Commissions Act.

[Air Force Captain Andre Kok, public affairs officer for the Office of Military Commissions, said in a response to a query to Ms. Crawford that, "This statement is inaccurate and misleading." He would not elaborate.]

I could have handled the Hartmann and Crawford problems, but for me, things went past the tipping point when they put Jim Haynes over me in the chain of command. You reach a point where enough is enough, and for me that point arrived on 4 October.

Proceedings : The camps at Guantanamo have been open since January 2002, and the Hamdan trial, the first trial, is only scheduled to begin on 21 July. What has the Military Commission been doing for the last six years?

Colonel Davis: Floundering. The thing that aggravates me most among many things Brigadier General Hartmann has said is his claim that he swooped in to energize the prosecution because we weren't performing at peak efficiency when I was in charge.

President Bush authorized military commissions in November 2001. Every day we inch closer to the seven-year anniversary of the President's military order and the results—or perhaps more accurately the lack thereof—speaks for itself. And I think that highlights how myopic Brigadier General Hartmann's claim is. The problem has always been the process itself, and the prosecution doesn't control the process. Had we had a process that wasn't repeatedly closed for repairs or operating at a reduced capacity due to malfunctions we would have prosecuted a large percentage of the cases by now.

Problems with the process have repeatedly ground things to a halt. We had federal court injunctions that stopped the trials. We had a Supreme Court decision that invalidated the entire commissions' scheme. We had months of legislative wrangling in an effort to revive the commissions. We had hasty legislative drafting that led to a flaw in the jurisdictional basis that kicked all of the cases out of court and required appellate court intervention to get them going again. And each of those glitches consumed months.

The process floundered because you had a few people who believed they were the smartest people on the planet and they alone knew the right way to do things, and nearly seven years later here we are. As I've said before, I think the results show what happens when you combine excessive arrogance with excessive ignorance.

Proceedings : Can Khalid Sheik Mohammed [Cited in the 9/11 Commission Report as the "principal architect of the 9/11 attacks."] and the other four 9/11 detainees ever be brought to open trial, or was the evidence against them obtained through tainted methods? Is this why the charges against "20th hijacker" Mohammed al-Qahtani, were suddenly dropped?

Colonel Davis: First, I don't know why the charges against Qahtani were dismissed. While you can argue that he was part of the same overall scheme as the others, he was the only one of the six charged in the 9/11 scheme who was never in the CIA [detainee] program, a program that comes with some unique challenges in and of itself. I was inclined to try him separately to avoid the cumulative effect of the bad treatment in CIA hands and more bad treatment at Gitmo, but as I said, there was no final decision when I resigned.

Second, I think it would take a lot of time and effort, but KSM [Khalid Sheik Mohammed] and the others could be tried in proceedings that are open by and large. But based upon what I know about the evidence in the cases and upon what I know about what it takes to go through the declassification process in order to have an open proceeding, I doubt the government has made all reasonable efforts to get the evidence declassified and they'll use the authority in the Military Commissions Act to close the hearings for large parts of the trial.

Proceedings : Are there legitimate distinctions between legal and illegal combatants? What's the difference between Osama bin Laden planning a 9/11 versus some Afghan who joined the Taliban in order to feed his family but was captured defending his village?

Colonel Davis: There are legitimate distinctions. Combat is an ugly business and nations have recognized that certain minimum standards, even in the midst of combat, are appropriate. Those who agree to adhere to those minimum standards, and who in fact do so, are entitled to their benefits. That's why the designation "prisoner of war" is so critical. A POW, while he or she may be a belligerent—that is someone who has taken up arms against us—is entitled to certain rights and benefits in part because his or her country affords the same to others. Those who take innocent people—like reporters—hostage and cut their heads off in front of a video camera for the world to see do not adhere to the laws of armed conflict and they and those who actively support them are not entitled to the special rights and privileges POWs enjoy. That's not to say they have no rights and we can treat them anyway we choose, but the process they are due is less than what a POW receives.

Proceedings : Could the existing American legal system have handled these stateless individuals who want to attack America and Americans—are they criminals or are they combatants?

Colonel Davis: While some of the cases could have been tried in federal court or a court-martial in the past, others couldn't. You've got issues like speedy trial, no rights advisements, a largely non-existent chain of custody for evidence, and those kinds of things that make ordinary criminal proceedings problematic. If you tinker with domestic criminal statutes to accommodate these unique circumstances you end up with something that's going to look a lot like the Military Commissions Act. Also, you can't take some of the cases, KSM for example, to a federal court or a court-martial but not the others. You can't have one process for what you might view as the really good cases and some lesser process for the ones that are not as good. There has to be one forum for all of the cases, not some pick and choose system.

I know some people say we've successfully prosecuted terrorism cases in our regular courts with success, so we don't need an alternative forum. Those were cases involving American citizens or those with status that entitled them to constitutional protections. Alien unlawful enemy combatants do not, in my opinion, have constitutional rights. The process they are due comes from Common Article 3 of the Geneva Conventions. The cases we've tried in federal court were cases that from the start were treated as law enforcement investigations where successful prosecution is the desired end result. The cases against the detainees at Gitmo began as intelligence interrogations where prosecution was not among the primary objectives, if it was an objective at all.

So what do we do now? I believe we need to focus on developing a system that affords all the rights guaranteed by Common Article 3 [of the Geneva Conventions of 1949. If followed, it can provide, according to the Center for Defense Information, a core "bill of rights" safety net for detainees even if additional Geneva Convention provisions were not applied.] We need to see if we can't build something that can weather the legal storms.

Proceedings : Some of the detainees are truly bad guys, who want to do harm to America. But what does one do with a captive who is not a formal POW—can you keep him in jail indefinitely?

Colonel Davis: The men at Gitmo weren't detained for trying to rob the corner liquor store or scamming on their taxes; they were detained to prevent them from inflicting harm on us and our allies during a period of armed conflict. So in that respect, yes, you can detain them indefinitely since the duration of hostilities is unknown.

The fact that the period is indefinite is no different than any other period of armed conflict. Take World War II, Vietnam, or the first Gulf War; it's not like when any of those began there was a date certain they'd end.

Proceedings : Why couldn't we have given them a Nuremberg-type trial? Or give them a criminal trial, as per the Blind Sheik who was instrumental in the 1993 World Trade Center bombing?

Colonel Davis: I've had a lot of people hold up Nuremberg as the model for how we should do these trials and my response has been we can do that, but I'd like to give them fair trials before we impose sentences on them.

Here's what I mean: People complain about the Military Commissions Act's relaxed hearsay rule. Compare that to the hearsay rule at Nuremberg—there was none. So you may not like our hearsay rule, but at least we've got one. There were some of the lesser cases tried at Nuremberg where no witnesses were called. People were convicted on almost nothing but hearsay evidence. At Nuremberg every accused was required to take the stand and subject himself to examination by the prosecutors. The [current] act includes the right against self-incrimination. I think most legal commentators will agree that's a pretty significant right and a pretty significant improvement on the Nuremberg rules. The major players at Nuremberg were executed about a week and a half after the trials ended, and they were allowed no appeals. The act has four layers of post-trial appellate review that goes all the way up the U.S. Supreme Court. So to those who have a nostalgic view of how wonderful Nuremberg was I'd say it was a marvel six decades ago, but it's not the model we should use today if we truly intend to do justice.

Proceedings : It's been charged that a number of the detainees were caught by the Northern Alliance, or by bounty hunters in Pakistan, and sold to American forces—is this true?

Colonel Davis: There were some. The individuals involved in the cases I reviewed for potential prosecution came to us through a variety of means. They all have their own unique circumstances and that makes broad generalizations about the detainees as whole a bit dangerous.

Proceedings : How would you design a legal system that lets America prosecute these stateless captives in an undeclared war that would be true to our existing legal principles?

Colonel Davis: I believe there are two choices at this point: fix the problems with the military commissions or, if they are too tainted to save, then create a national security court.

It may be too late to salvage the commissions with any measure of credibility, but if it's possible, I believe it requires four things. First, turn the military commissions over to the military and take the political appointees and the politics out. Every court-martial ever convened under the Uniform Code of Military Justice, as far as I know, was convened by a military officer, not a civilian appointee, yet the convening authority for the military commissions is a civilian who has never served one day in uniform. They bill this as military justice when it's really neither. Second, we've got to have an unequivocal commitment that we will not offer any evidence derived by waterboarding or any other technique the prosecutors believe produced evidence that is contrary to the interests of justice. Third, openness and transparency must be a priority. There will have to be some closed hearings, but that should be the exception and not the rule. We can't sacrifice transparency for the sake of speed, even in an election year. We need to take the time to get evidence declassified so the world can see these are full, fair, and open trials. Finally, the prosecution, defense, judges, appellate court, and convening authority must be separate and independent of each other.

If it's too late to salvage the commissions then perhaps some sort of national security court is the answer. I'd recommend a process that is sort of a Foreign Intelligence Surveillance Act and Military Commissions Act merger, a system that includes both federal and military judges.

 



1. The Philadelphia Lawyer , Fall 2007, p. 46.

2. After the Supreme Court ruled against the Bush administration in two cases, Congress and the White House changed the law in an effort to keep the Guantanamo prisoners from contesting their detention before American judges. The Supreme Court ruled on a challenge ( Boumediene v. Bush ) to a provision of the Military Commissions Act of 2006 that denies any Guantanamo detainee the right to file a habeas corpus petition.

Habeas corpus is a centuries-old legal principle enshrined in the Constitution that allows the courts to determine whether a prisoner is being held illegally. The Bush administration says foreigners held outside the United States have no constitutional rights and that Congress has stripped federal courts of jurisdiction in the detainee cases. The Supreme Court ruled on 12 June that habeas corpus cannot be denied to detainees.

3. The New York Times , 17 May 2008, p.11.

 

Mr. Lubin is an author and journalist who has spent considerable time embedded with U.S. forces in Iraq and Afghanistan. He writes for www.TheMilitaryObserver-OnPoint.com . His most recent book is the award-winning Charlie Battery: A Marine Artillery Battery in Iraq (L&R Publishing, 2004).
 

Andrew Lubin is an internationally recognized author and college professor - with more than 30 years of hands-on experience in logistics, international relations, national security, and international trade. Frequently embedded with Marine Corps units in Iraq and Afghanistan, he has, since 2003, spent nearly a year in the Middle East and South Asia ? and has spoken to U.S. Central Command planners on the subject of irregular warfare. Mr. Lubin is known for successfully combining academic international relations theories with the realities of walking night patrols with the Marines in Ramadi and villages in eastern Afghanistan. A guest commentator on FOX News Channel, ABC News and CNN, his writing has appeared in newspapers worldwide and on Military.com. His contributions to Proceedings magazine include: "Ramadi: From the Caliphate to Capitalism" and "Guantanamo: Full, Fair, and Open Trials."

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