Military commissions: fair or foul?

Los Angeles Times
by Morris D. Davis
December 26, 2007

A former prosecution responds to a blowback by his ex-boss.

Air Force Brig. Gen. Thomas W. Hartmann, who responded negatively to my Op-Ed article explaining my resignation, had an opportunity on Dec. 11 to appear with me and engage in thoughtful debate, under oath, at a Senate hearing on the rights of Guantanamo detainees. An order issued by the Office of the Secretary of Defense on Dec. 6 prohibited me from accepting Sen. Dianne Feinstein's invitation to testify. This latest action to silence me was consistent with the gag order Hartmann gave me on Oct. 4 after I resigned, expressly forbidding me to communicate with anyone in the news media about the reasons for my resignation. In a figurative sense, I suppose I'm not the first person associated with Guantanamo to be bound and gagged before having cold water poured on him, although in my case it is intended to induce me not to talk.

I'm not going to get into a tit-for-tat with Hartmann, but I do want to address a few of his main points. Before doing so, I want to emphasize three things. First, I have the utmost respect for the dedication and integrity of the men and women I worked with on the military commissions. Second, I believe the Military Commissions Act is an excellent piece of legislation that provides the framework for full, fair and open trials. My concerns are centered on the implementation of military commissions within that framework. Third, there are some incredibly bad men at Guantanamo, including a few that I believe deserve to be executed if found guilty. The problems with the military commissions process do not negate their culpability.

Hartmann states that he directed me to evaluate cases — including evidence, charges and preparation — more carefully. Had it been as simple as that there would be no problem, but instead, convening authority Susan Crawford's staff, including her legal advisor, inserted themselves into these prosecutorial matters. Hartmann is right that his actions were deemed permissible by an independent panel, but I respectfully disagree. Their conclusion was based on analogy to ordinary court-martial practice in which the convening authority (the commanding officer) and his or her lawyer (the staff judge advocate) have an active role in the court-martial process.

But even where courts-martial are concerned, active involvement has been criticized. A report […] prepared for the National Institute of Military Justice in 2001 said:

(T)he far-reaching role of commanding officers in the court-martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces.… The combined power of the convening authority to determine which charges shall be preferred, the level of court-martial, and the venue where the charges will be tried, coupled with the idea that this same convening authority selects the members of the (jury) to try the cases, is unacceptable in a society that deems due process of law to be the bulwark of a fair justice system.

Involvement is defended on the grounds that the convening authority, as the commanding officer, is responsible for the mission readiness of his or her organization, which depends on the morale, good order and discipline of the troops. The accused on trial in a court-martial is one of the convening authority's own and the disciplinary action is intended, in large part, to promote good order and discipline. That justification is subject to criticism in court-martial practice; it is nonexistent in military commissions practice. Crawford is not responsible for the mission readiness of Al Qaeda, and she owes no duty to Osama bin Laden. Military commissions are about retribution, not readiness. To permit the convening authority's staff to intervene in prosecutorial decisions perpetuates the perception that military commissions are rigged to secure convictions. The prosecutors in the U.N.-sanctioned war crimes courts in Sierra Leone and Cambodia are assured independence. Prosecutors in military commissions conducted in the name of the United States should be too.

Hartmann claims that the military commissions are moving forward "fairly and transparently," and he notes that the accused will be allowed to review everything that goes to the jury. Permitting the accused to see the evidence — a right that only came at the insistence of Congress — goes to the "fairly" part, but not the "transparently" part. He and I appear to have different perceptions of what transparency means. In my view, the trials will not be transparent if the courtroom doors are closed to the media and other observers for significant portions of the proceedings. Telling the world, "trust me, if only you had seen what we did in court today, you would have been so impressed," is doomed to failure.

Working through the classification review process in an effort to get evidence declassified for use in an open proceeding is tedious and time-consuming. My prediction is that you will see charges brought against some of the most notorious detainees very soon, for whatever reason, and before all of the evidence has gone through classification review. That will get some noteworthy cases into court, but largely behind closed doors and out of public view. That is not transparency.

Hartmann says the military commissions are consistent with an American military justice system that is the envy of the world. Apparently he's privy to some worldwide polling data I haven't seen, because it appears to me military commissions have created worldwide enmity, not envy. To overcome that, there must be two assurances from the highest levels: One, that evidence derived from waterboarding will not be introduced before a military commission, and two, that all reasonable efforts to keep the proceedings open to the media and other observers will be exhausted before closing any portion of any trial. That's the minimum American justice demands.

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