The Briefing

The Continuing Importance of Military Commissions

Monday, June 10, 2013

Among the most notable but least appreciated points in President’s Obama’s much-analyzed recent speech on ending the long war against Islamist terrorists and closing the Guantanamo Bay detention facility was his endorsement of military commissions.  Despite a checkered history and continuing criticisms, military commissions are playing and will continue to play a crucial role in the long war.

I.

One might be forgiven for forgetting that military commissions are military courts with a pedigree stretching to the founding of the nation that are used to try enemy forces for war crimes and related offenses.  When President Bush established modern commissions in November 2001 without consulting Congress or his National Security Council, he was widely criticized for violating separation of powers and for departing from ordinary standards of wartime justice.  Both problems have been largely fixed in the ensuing dozen years, thanks to a Supreme Court decision, two congressional interventions, continuing federal court supervision, and a lot of hard work at the Pentagon.  While some details in the shape of commissions continue to be challenged, today commissions satisfy the fundamental fairness guarantees of the Geneva Conventions and the structural commands of the Constitution.

President Obama has traveled a long road on commissions.  He criticized them during the 2008 campaign and suspended their use at the dawn of his presidency.  After an intense review, however, he concluded in 2009 that commissions were useful and necessary, and he charged his administration with improving their legitimacy.  In his speech last month, the president insisted that suspected terrorists can be prosecuted in either civilian courts or military commissions, and he announced that he had asked the Department of Defense to designate a site in the United States for commission trials.  On the heels of his speech, news reports suggest that the administration plans to use commissions to prosecute new detainees not already in Guantanamo Bay.

President Obama obviously did not embrace military commissions lightly.  He did so because, as he explained in May 2009, they “allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.”  Commissions have jurisdiction over a narrow class of defendants: non-citizen “unprivileged belligerents” who are captured abroad and charged with violations of the laws of war.  In acknowledgment that the special nature of the defendants and the circumstances of their alleged crimes create practical evidentiary difficulties at trial, commissions depart from the usual civilian court procedures a bit for issues like hearsay, disclosure of sources and methods of intelligence-gathering, and the admissibility of confessions.    These small but real differences are consonant with — and indeed, more defendant-friendly than — analogous departures from civilian standards in international criminal courts or in U.S. military commissions historically.

Moreover, the differences with civilian trials are swamped by the similarities.  These similarities include, among many other things, the presumption of innocence, the requirement to prove guilt beyond a reasonable doubt, the right to counsel and to be present during proceedings, the right to be free from self-incrimination, the right to cross-examine government witnesses, the right to compel the witnesses for one’s defense, the right to see exculpatory evidence, the right to an impartial decisionmaker, the right to the suppression of unreliable or non-probative or unduly prejudicial evidence, the right to self-representation, protection against double jeopardy and ex post facto laws, and the right to appeal.

II.

The president’s continuing support for military commissions and his apparent willingness to consider using them in the homeland to try freshly captured terrorists who have violated the laws of war imply that commissions are being normalized into the government’s set of available counterterrorism tools.  This conclusion seems at odds with recent public criticisms of commissions, which fall into three baskets.  First, legal defeats in civilian courts portend that commissions are unworkable.  Second, “compared to civilian trials,” commissions “take longer, cost more, have inferior procedures and produce more lenient sentences.”  And third, commissions have a “kangaroo-court feel” because they supposedly permit the “hacking of 540,000 defense e-mails,” “eavesdropping on confidential conversations” between defendants and their counsel, and probable CIA censorship over the public audio stream of trial proceedings.  These charges are wrong or misleading.

Legality.  Since the Supreme Court’s 2006 decision in Hamdan, which struck down the original Bush administration commissions on separation of powers grounds, Congress has twice reauthorized commissions, both times strengthening their legal foundation.  Although the Supreme Court has not yet weighed in on reformed commissions, they are almost certainly legally valid as an institution, although the particular crimes that can be brought in commissions remain uncertain.

Most of the litigation since 2006 has concerned this latter issue.  A panel of the D.C. Circuit Court of Appeals held last year in Hamdan II that military commissions could not prosecute defendants for “material support of terrorism” for pre-2006 conduct.  Some commentators (myself included) viewed this decision as strengthening the legitimacy of military commissions by tightening their focus and by demonstrating that any commission decisions are subject to vigorous judicial review.  If Hamdan II stands (its holding is currently under review by the entire D.C. Circuit in a different case called Bahlul), it will certainly narrow the scope of cases triable in commissions.

But even if Bahlul goes entirely against the government (and we have a long way to go before that point), it does not follow that commissions are dead, or even near dead, as an institution.  First, they would still have available secondary liability tools like conspiracy accompanied by a predicate crime, aiding and abetting, and, possibly, joint criminal enterprise — all of which are somewhat harder to prove than material support, but which are all still useful to the prosecutor.  Second, even material support and stand-alone conspiracy for post-2006 offenses might be available in commissions.  Third, and most important, the most consequential cases before commissions — the ones against the alleged 9/11 conspirators and the alleged Cole bombers — are largely unaffected by adverse decisions on material support and conspiracy.

Efficiency.  There is no doubt that the efficiency of military commissions has been hampered by the unfortunate circumstances of their birth in 2001, by their novelty in the modern legal landscape, and by the Obama administration’s suspension of them, followed by its aborted effort to try the 9/11 conspirators in civilian court, only to conclude that they should be tried in military commissions after all.  And yet despite legal and political hurdles and missteps in two administrations, commissions have accomplished more than is appreciated.

Many see the seven convictions by military commissions as a small number, and the D.C. Circuit’s decision in Hamdan II qualifies even that number.  But as much as anything else (and there are many other factors), the number results from the fact that commissions do not purport to be a pure substitute for civilian trials.  If we focus just on the narrow category of “unprivileged belligerents” who are potentially triable in military commissions, civilian courts have prosecuted approximately a dozen men in that category in the last dozen years.

Moreover, the main action in commissions is in the two largest criminal investigations in U.S. history: the 9/11 attacks, and the Cole bombings.   These are huge and in many respects unprecedented cases of enormous complexity that would have taken a long time to prosecute in any court.  The parties in these cases have briefed hundreds of motions on legal and evidentiary matters, and the government has disclosed hundreds of thousands of documents.  As these numbers suggest, the flip side of the inefficiency criticism is that the defendants in military commissions are being given extraordinary procedural justice compared to other international trials and prior commission trials, and consonant with civilian trials.  The bottom line is that this scale of justice for this scale of cases takes time.

Kangaroo Court?  A number of unfortunate events in military commissions have received high-profile attention in the last few months, but all have been made to seem more sinister than they actually are.

Military commissions did not hack 540,000 e-mails.  Rather, as a court filing by the government explains, the prosecution asked the Enterprise Information Technology Services Directorate, a separate IT unit, to search its databases for documents (including, apparently, e-mails) responsive to a court order responding to a petition filed by counsel for a previously convicted detainee.  The IT unit then erred in its execution of the search, and unintentionally delivered to the prosecution an unknown number of communications by or with defense counsel.  After viewing the header information (not the content) of one such e-mail, the prosecution team disclosed the error to defense counsel and the trial court judge, and the IT unit destroyed the e-mail copies with the assent of defense counsel.  The IT unit made a very unfortunate error, but there is no evidence that the commission in fact breached the attorney-client privilege.

Nor did commission prosecutors breach the attorney-client privilege by listening to defense conversations with clients.  As the government has explained, it did install microphones in the multi-purpose room for use during law enforcement interviews.  Police stations around the country have microphones in interview rooms for just this purpose.   But the prosecution team — which, once again, voluntarily disclosed the existence of the microphones — pledges that it never listened to a single attorney-client conversation, and there is no evidence to suggest otherwise.

Finally, there has been no CIA censorship of public transmissions of commission proceedings, which are streamed on closed-circuit television and audio transmissions.  As a condition for the availability of these extraordinary transmissions, and as provided by Congress, the trial judge has ordered a forty-second delay of the transmissions, with the possibility of interruption if classified information is disclosed during the delay.  This is a sensible way to balance the transparency imperative with the need to protect classified information.  But to the best of my knowledge (there is no definitive statement in the public record), no part of any pre-trial session has yet been kept permanently from the public.  There have been temporary delays in disclosure of a very few elements of the pre-trial proceedings in order to determine whether classified information was at risk.  The CIA might have had a role in these delays as the relevant original classifying authority (I do not know).  And it remains possible in the future (as provided by 10 U.S.C. 949d(c)(2)(A) and MC Rule of Evidence 505) that proceedings will be closed in narrow instances to protect classified information — a practice, as David Kris has argued, with analogues in civilian court and in court martials.  But the real story here is not the possible role of the CIA in identifying its classified information, or the possibility of rare future instances of closing trial proceedings to the public, but rather the extraordinary and historically unprecedented public transparency of commission proceedings.

While these three episodes are ultimately benign, every element of the Defense Department and the U.S. government must try much harder to ensure that credibility-diminishing mistakes do not happen, and that it is solicitous of defendants’ rights and defense counsel in appearance just as much as in reality.  These events did not infringe on the sacrosanct attorney-client privilege or other constitutional rights, but such incidents can have a corrosive effect on the appearance of justice that is so important to commissions’ ultimate success, and that the government has worked so hard in other contexts to strengthen.

III.

 The high-level al Qaeda cases (in the 9/11 and Cole trials) are the most important terrorism trials in the history of the nation.  The success or failure of modern commissions will turn on the ultimate success or failure of these trials, which face many more legal and political hurdles, and will take many years, before final judgment.

Critics of military commissions keep insisting that the high-value defendants should be tried in civilian court.  This insistence is politically unrealistic.  Congress and the American people have made clear that they will not permit these defendants to be tried in civilian court.  If, as the critics want, commissions were to fail with regard to the high-value defendants, it would not mean that the defendants would be released or brought to civilian court for a different trial.  Rather, the only politically feasible alternative to trial and punishment of these defendants by military commissions is indefinite detention without trial.  In other words, the only politically feasible alternative is, from a civil liberties perspective, worse.

President Obama appears to get this point.  That is undoubtedly one reason why — in a signal to his administration as much as to the public — he re-committed to military commissions in his speech.  And his administration appears to be following up.  A few weeks after the speech the Defense Department announced a new military commission prosecution against Abd al Hadi al Iraqi, a senior al Qaeda member detained at Guantanamo Bay, who allegedly unlawfully killed U.S. forces and civilians.  And there are signs that the administration has ambitions for commissions beyond the Guantanamo Bay detainees.  The president’s decision to move commissions to the United States is one part of this strategy.  The Obama administration approved military commission charges against Ali Musa Daqduq, the Hezbollah operative who killed Americans in Iraq, but could not secure his extradition from Iraq.  And recent news reports suggest that the administration is preparing to bring from abroad “a relatively new capture, who has ‘no taint associated with interrogations’” for military commission trial in the United States.

These developments imply that the president sees military commissions as a tool of continuing importance in the long war against Islamist terrorists.  Congress is even more supportive, as might be future presidential administrations that will benefit from the legitimating efforts of the Obama administration.  Commissions have suffered many setbacks in the past dozen years.  But they are stronger today than ever as a result of these setbacks, which have brought a narrowing of commission jurisdiction and a strengthening of defendant rights, in the process increasing commission legitimacy through lawful constraint.

UPDATE

Two updates based on events the day the essay was published:

First, microphone devices have been removed from the rooms where defense attorneys met with their clients.

Second, I noted "the possibility of rare future instances of closing trial proceedings to the public," and last Friday the possibility became a reality as commissions went into closed session for the first time. For an understanding of the legal basis of closure, how it relates to the law that prevails in civilian courts, and how the defendant's rights were protected, I recommend Chief Prosecutor Mark Martins' explanation (pp. 4-6).