Jack Goldsmith, a former Bush administration official, recently wrote about how the Obama administration learned to love military commissions. Goldsmith’s narrative has a certain intuitive appeal: Obama campaigned against military commissions but, once faced with the hard realities in the fight against Al Qaeda, embraced military commissions as a practical option for dealing with terrorism suspects.
I was an early supporter of military commissions. As a military lawyer, I was well aware of our courts martial system, and of how commissions have been used throughout our history to dispense battlefield justice when the civilian courts and the trappings of courts martial are unavailable. So. when President Bush issued an order authorizing them, my instinct was not to be overly concerned. But it soon became clear that these commissions would be like no other in our history, playing fast and loose with the law in ways that give military justice a bad name.
Today, after a decade’s worth of complex, cumbersome litigation and only 7 convictions, it seems more plausible that the Obama administration’s attraction to military commissions has more to do with the uniquely messy and politically-sensitive problem of how to deal with Guantanamo detainees – such as Khalid Sheikh Mohammed and the other 9/11 co-defendants – than a policy determination that military commissions are essential for incapacitating terrorists. Whatever the pragmatic reasons for embracing military commissions today, the military commissions system should not become a permanent fixture of counterterrorism policy.
It’s true that in response to widespread criticism and legal sanction from the Supreme Court, the military commissions system has improved. That’s a good thing. Defendants now have better access to counsel and improved procedural protections. As a general matter, the rules no longer allow the government to admit at trial evidence obtained through torture and other forms of abuse (though how this will apply in practice remains to be seen). But just because the military commissions have gotten better, doesn’t make their use lawful or smart as we look ahead to how we should deal with future terrorism suspects.
Despite Goldsmith’s rosy picture of a stable military commissions system endorsed by Congress and two successive administrations, most analysts that have examined the military commissions note that they are fraught with legal problems that could yet again prompt the Supreme Court to strike them down as unlawful. Trying some of the worst criminals in recent history in such a system is very risky business. For example, while Goldsmith recognizes that military commissions at Guantanamo were designed to try war crimes, he fails to note that most of the prosecutions undertaken thus far have been for offenses (material support for terrorism and conspiracy, for example) that are not internationally recognized war crimes. Ex post facto — that’s what our founding fathers called it when a government tries people for acts that were not considered criminal at the time. Does that mean what the accused in military commissions are charged with wasn’t a crime? No. These are all crimes under our civilian law; they’re just not war crimes, no matter how many times we say they are. Similarly, military commissions prosecutions would only be valid for crimes committed during war, a fact that will undermine any prosecutions for crimes committed prior to the 9/11 attacks or after combat operations end in Afghanistan. These are major legal weaknesses at the heart of military commission trials.
Moreover, the policy justifications Goldsmith and others give for supporting military commissions are as weak as the legal foundation supporting the commission trials. Goldsmith writes that military commissions “have special rules about evidence, secrecy, and other matters that are tailored for the exigencies of war.” While this is partly true, it doesn’t justify the departure from the traditional practice of dealing with terrorism suspects in the civilian justice system.
Unlike military commissions, federal courts have a long history of handling international terrorism cases, including when suspects are picked up abroad or accused of terrorism-related crimes committed outside the U.S. These cases, at times complex and problematic from a rights perspective, have not been prohibitively difficult for prosecutors and judges, who have made use of permissive procedural rules to admit at trial a wide variety of incriminating evidence without compromising sensitive national security information. In the over 400 international terrorism-related convictions in federal court, there isn’t one clear example where the government was forced to choose between vigorously prosecuting a suspect and disclosing sensitive national security information.
Given this compelling track record, it’s no wonder the military commissions system has tried to replicate key features of civilian terrorism trials. The classified information protection rules in military commissions are modeled on those used in federal courts. Prosecutors from the Department of Justice with experience in civilian international terrorism cases are now increasingly dispatched to Guantanamo to assist with prosecutions. And, as noted before, the key charges in most of the military commission prosecutions are not war crimes but are instead offenses such as conspiracy and providing material support to terrorists – federal charges that are routinely pursued in civilian international terrorism cases.
So, why does Goldsmith insist that military commissions serve an “indispensable role” in the campaign against al Qaeda? Proponents of military commissions often assert that it’s improper for civilian courts to try crimes committed on the “battlefield” (though the War Crimes Act gives civilian courts jurisdiction over law of war violations by both U.S. soldiers and our enemies). However, most foreign terrorism suspects – including many of those being held at Guantanamo – were not picked up by U.S. armed forces on the “battlefield,” even if they were eventually transferred into military custody by local authorities. Indeed, most individuals picked up on the “battlefield” in Afghanistan are held in the U.S.-run detention facility at the Bagram Air Base, not tried in military commissions at Guantanamo; some are even transferred to Afghan authorities to face the very same kinds of civilian criminal trials that Goldsmith and others claim are inappropriate for “battlefield” captures.
Moreover, given the drawdown in Afghanistan, it will be increasingly rare for U.S. forces to capture a suspected war criminal on the battlefield. Even in these cases, supporters of military commissions must explain why these suspects are afforded different procedural protections than those given to U.S. soldiers accused of committing crimes in theater. The rules for commissions differ from those for courts martial in important respects; these differences amplify the sense that the military commissions are an inferior system of justice.
Not only is Goldsmith wrong that military commissions are indispensable, the reality is that military commissions will not be a sustainable tool for the next decade in our fight against Al Qaeda. As we prepare to end combat operations in Afghanistan, and as Al Qaeda continues to fracture in the wake of Osama bin Laden’s demise, threats are increasingly coming from small cells and lone-wolf actors operating in dozens of countries around the world, including here at home. It would be inappropriate and ill-advised to expect our military to take the lead in addressing these threats by acting as judge, jury, and jailor in terrorism cases. And putting thugs like Khalid Sheikh Mohammed on trial before uniformed officers of the U.S. military confers on terrorists like him and his ilk the warrior status they so desperately seek.
A decade after 9/11, the alleged co-conspirators of that heinous, murderous plot are facing trial in a military commission. This trial is likely to be an understandably cathartic moment for many Americans. It should also be a moment when we begin closing the chapter on the failed military commissions experiment.
Rear Admiral John D. Hutson served as the Navy's Judge Advocate General from 1997 to 2000. He recently retired as President and Dean of the Franklin Pierce Law Center in Concord, New Hampshire.