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Tinkering With the Bush Model

Military Commissions, Round Three

by JOANNE MARINER

Politicians normally like to be praised, but I have to wonder how President Obama feels having gotten accolades from such unaccustomed sources as Ari Fleischer, John McCain and the Wall Street Journal.

As a presidential candidate, Obama rightly called the military commissions at Guantanamo "an enormous failure." On his second day in office, he suspended the commissions for 120 days and announced plans to close the detention center at Guantanamo within a year.

But this month, the Obama administration announced that it would resume trials of Guantanamo detainees by military commissions, albeit under new rules that would offer defendants greater legal protections. The additional rules prohibit the introduction of evidence obtained through cruel treatment, tighten the rules on hearsay evidence, and allow detainees greater choice in selecting defense lawyers. While the revised commissions improve somewhat on the model used by the Bush administration, they still fall far short of providing the due process guarantees found in U.S. federal courts.

Unsurprisingly, Republicans are jubilant. Portraying Obama’s reversal as a belated embrace of the Bush administration’s war on terror, their tone is unabashedly triumphant.

"With some minor changes, he really is following the same path President Bush pursued," declared Fleischer. "He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney," crowed the Wall Street Journal.

This is not change we can believe in.

Military Commissions So Far

The Obama tribunals will be round three in what has been a long, ad hoc, and entirely unnecessary process. The first set of post-9/11 commissions, established by executive order in 2001, were struck down by the Supreme Court in the 2006 case of Hamdan v. Rumsfeld. Congress reinstituted the system via the Military Commissions Act of 2006, and the commissions obtained their first conviction (by guilty plea) in March 2007.

David Hicks, an Australian former kangaroo skinner, served nine months of a seven-year suspended sentence, most of which was spent in his home country. He is now a free man.

Military commission charges are currently pending against 20 defendants, but only two other defendants have been convicted by the commissions: Salim Hamdan, Osama bin Laden’s former driver, and Ali Hamza al-Bahlul, bin Laden’s self-proclaimed media secretary. Hamdan was sentenced to five-and-a-half years of imprisonment, but was granted 61 months’ credit for time served and is now free in his native Yemen. Al-Bahlul was sentenced to life in prison after refusing to mount a defense.

While none of the detainees tried before the commissions have been acquitted, Hamdan was found not guilty of some of the most serious charges against him.

Tinkering with the Bush Model

The proposed changes to the military commissions are improvements, but they tinker with the basic model rather than repudiate it. Notably, the very purpose of the commissions was to permit trials that would not be bound by the due process protections available to defendants in federal courts, and this remains true today.

An inherent problem with the commissions is their lack of independence. Being part of the larger military structure, they are vulnerable to improper executive branch influence and control.

Another issue of concern is the commissions’ continued reliance on hearsay evidence. Although some defenders of the commissions have pointed to international tribunals’ relatively permissive rules on hearsay, a crucial distinction is that the triers of fact in such tribunals are judges – who know to properly discount the weight of hearsay – not laypersons, who do not.

The previous set of military commissions was beset with problems that resulted from starting a system from scratch. Defendants and their legal counsel could never be confident about the rules of procedure, which were ad hoc and untested, making the preparation of a defense difficult. For instance, the system in place to provide discovery to defendants left defense counsel without access to critical – and in some cases possibly exculpatory – evidence. Many issues were subject to legal challenge, resulting in long and unnecessary delays.

The U.S. federal courts, by contrast, have procedures that have already withstood years of litigation. And although critics assert that trials in U.S. courts would jeopardize national security by exposing sensitive intelligence information, the courts have carefully crafted rules to protect sensitive information from becoming public.

The federal court system also has a long history of providing fair trials in difficult cases. Sheikh Omar Abdel-Rahman, implicated in the 1993 World Trade Center bombing, and Zacarias Moussaoui, implicated in the 9/11 attacks, were both tried and convicted in the federal courts. During the seven-year period when military commissions prosecuted three terrorism suspects, the federal courts tried more than 145 terrorism cases.

Even if the revived military commissions are improved dramatically, they will be deeply tainted by the moral and political baggage of the old commissions. The unhappy history of the commissions virtually guarantees that, in future trials, the unfairness of the proceedings will distract from the gravity of the crimes being adjudicated.

Preventive Detention?

All in all, defenders of the Bush administration’s misguided counterterrorism policies have good reason to exult. Yet liberals who refuse to be discouraged might perceive at least one possible silver lining in President Obama’s decision to rely on the commissions. Because of the commissions’ looser rules, the Department of Justice may end up prosecuting people before the commissions whom they would not have tried to prosecute in the federal courts. Importantly, this could mean that fewer people end up in a purported "third category" of detainee — those who are said to be impossible to prosecute but too dangerous to release, and who might face indefinite preventive detention.

Reinstating military commissions is a terrible misstep, but continuing the Bush administration’s policy of detention without trial would be worse. Let’s hope the Wall Street Journal never gets the chance to commend Obama for that.

JOANNE MARINER is a human rights lawyer living in Paris.