Military Commissions: Government Flounders, As Admiral Hutson Nails Problems

In a major national security speech on May 21, President Obama demonstrated an unnerving ability to keep too many options on the table by proposing five possible courses of action for the prisoners at Guantánamo: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions (the "terror trials" introduced by former Vice President Dick Cheney in November 2001), and indefinite detention. As I mentioned in an article last week, "At the time, civil liberties groups, lawyers and numerous commentators -- myself included -- responded with undisguised hostility towards the last two options."

This hostility to proposals to resuscitate the Military Commissions and to seek approval for plans to legitimize indefinite detention was not assuaged on Tuesday when the Senate Armed Services Committee heard testimony on "legal issues regarding military commissions and the trial of detainees for violations of the law of war" from Jeh Johnson, the Defense Department's General Counsel (PDF), and David Kris, the Assistant Attorney General in the Justice Department's National Security Division (PDF). Both men gave Committee members detailed and considered opinions about how to amend the Commissions in an attempt to ensure, as the President stated in May, that the administration would "work with Congress and legal authorities across the political spectrum on legislation" relating to the Commissions, so that they would be "fair, legitimate, and effective."

These opinions focused on five particular amendments, which, as Kris described them, were rule changes which "prohibited the admission of statements obtained through cruel, inhuman or degrading treatment; provided detainees greater latitude in the choice of counsel; afforded basic protections for those defendants who refuse to testify; reformed the use of hearsay by putting the burden on the party trying to use the statement; and made clear that military judges may determine their own jurisdiction."

However, both men ignored a fundamental problem with the entire proposal; namely, that using Military Commissions instead of federal courts perpetuates the Bush administration's ludicrous assertion that "terror suspects" seized in the "War on Terror" were "unlawful enemy combatants," rather than prisoners of war or criminal suspects. In addition, grave concerns over the administration's adherence to the Bush administration's central policy of creating a new category of prisoner outside existing laws were not dealt with simply "discontinu[ing] the use of the phrase 'unlawful enemy combatant,'" as Jeh Johnson stated on Tuesday.

In his testimony, Johnson hinted at the government's confusion. "Military commissions should be a viable, ready alternative for national security reasons for those who violate the laws of war,'" he said, but added, as Carol Rosenberg described it in the Miami Herald, "it is the administration view that when you direct violence on innocent civilians in the continental United States, it may be appropriate that that person be brought to justice in a civilian public forum in the continental United States." He then said that federal courts -- Title 18 courts -- "appear to be the first preference," because "the act of violence that was brought against civilians was a violation of Title 18 as well as an act of war.'"

With this comment, it appears to me that Johnson captured the essence of the administration's post-Bush confusion, regarding the genuine terror suspects in Guantánamo as both criminals and warriors, when they should, instead, be regarded simply as criminals. It led to bizarre efforts by both Johnson and Kris to assure the Committee that providing the accused with greater safeguards on the gathering of evidence would not mean, as Johnson put it, that "soldiers on a battlefield should be required or even encouraged to provide Miranda-like warnings to those they capture" (in other words, the right not to provide self-incriminating statements), even though these issues should not arise at all. Before the Bush administration decided that there was a third category of prisoner, soldiers in wartime were held as prisoners of war until the end of hostilities, and were protected by the Geneva Conventions, and terrorists were criminal suspects, to be put forward for federal court trials.

This was not the only sign of a deep confusion at the heart of the Obama administration. As Carol Rosenberg described it, Jeh Johnson also touched on the administration's apparent enthusiasm for "preventive detention," when he "adopted a Bush administration view that a Guantánamo detainee could be acquitted of a crime by a jury but still held indefinitely by the U.S. military on grounds he would be dangerous if set free." This was always one of the Bush administration's most intolerable betrayals of the very principles of justice, and was no less chilling when delivered by one of Barack Obama's most senior lawyers.

Fortunately, Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the U.S. Navy from 1973 to 2000, and was the Navy's Judge Advocate General from 1997 to 2000, was on hand to cut through the administration's fog, to put forward a stout defense of the abilities of the federal courts, and to deliver a withering dismissal of proposals to revive the Military Commissions (PDF).

Hutson said that although he was an "early and ardent supporter of military commissions," the process created by the Bush administration "did not live up to the traditions" of the Uniform Code of Military Justice (the military's own judicial system), and had become a "significant distraction for the military," because "[p]reserving and ensuring justice in the United States is the primary mission of the Department of Justice, not the Department of Defense." In a detailed analysis of the federal courts' abilities to try terror suspects -- and of how the DoD does not have a track record of conducting "terror trials," and has been tarnished by its association with the Commissions over the last seven years -- he said that the Commissions had "become a discredit in spite of the valiant and highly credible efforts of many, many people in uniform," that they "have not worked often or well," and that "'Fixing' them would help, but won't eliminate undeserved but inevitable criticism." In contrast, he added, "during the same period, U.S. District Courts have successfully prosecuted literally hundreds of terrorists who now reside in Federal prisons around the country, keeping all Americans safer."

In one of the most critical passages, Admiral Hutson highlighted the confusion inherited by the Obama administration from its predecessor, regarding the status of the genuine terror suspects in Guantánamo. "Let us not forget," he said, "these are not legitimate warfighters. They are thugs, cowards who target innocent civilians. We should treat them as such and not elevate their status to that of legitimate enemies."

In what was perhaps the most critical passage, however, he pointed out that using Commissions instead of federal court trials appeared to demonstrate only that the government was afraid that some federal court trials would fail, and was therefore seeking a forum that eliminated the possibility of acquittals. "If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don't have sufficient admissible evidence, then we have missed the point," he said. "You can't have a legitimate court unless you are willing to risk an acquittal. If you aren't willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn't really a court. It's a charade."

These were extremely significant comments, as anyone who has studied the history of the "War on Terror" Commissions knows only too well. Military defense attorneys, assigned to represent prisoners in the Commissions, realized early on that the system was designed solely to secure convictions, and this realization was the basis for their unanimous opposition to the Commissions' very existence. As Lt. Cmdr. Charles Swift, who represented Salim Hamdan, one of Osama bin Laden's drivers, explained in 2007, "The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively -- what some people call torture. Guantánamo and the military commissions are implements for breaking the law."

In addition, in October 2007, when Col. Morris Davis, the Commissions' chief prosecutor, resigned, he stated, in subsequent statements, that he had done so not only because of the politicization of the process (which I wrote about in an article last October, "The Dark Heart of the Guantánamo Trials") and the administration's insistence on using information derived from the use of torture (despite his implacable opposition), but also because, in a discussion in August 2005 with Jeh Johnson's predecessor, William J. Haynes II (one of the most significant figures in the development of the Bush administration's torture policies), the following exchange had taken place (as he explained to the Nation):

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

The rest of Admiral Hutson's testimony was devoted to expanding on his explanation of why federal courts are the only viable forum for "terror trials," and involved him not only dismissing as "a red herring" the notion that soldiers would have to give Miranda warnings to those captured on the battlefield, but also pointing out, "[I]f we create yet another military commission system that 'contains all the judicial guarantees considered to be indispensable by all civilized peoples' as required by Common Article 3 of the Geneva Conventions, then we have essentially duplicated our own Federal courts."

In conclusion, he said,

Clearly and undeniably, the Administration and this Committee are dedicated to untying this Gordian knot in a way that serves the very best interest of the country. We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal it rather than improve it. In the process, I urge you to express this body's preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.

My hope, of course, is that senior officials in the Obama administration and the members of the Senate Armed Services Committee not only digest Admiral Hutson's words of wisdom, but also shape their still amorphous policies based on his advice. The alternative -- a legal quagmire that lacks legitimacy and maintains key policies of the Bush administration's "War on Terror," including trials designed to prevent acquittals, and claims that prisoners can continue to be held even if acquitted after a trial -- is, genuinely, almost too awful to contemplate.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press), and maintains a blog here.

Follow Andy Worthington on Twitter: www.twitter.com//GuantanamoAndy

Comments

[Seasnake]

Guantanamo Bay appeared perfect for holding prisoners out of sight. Since they were not on US soil they would not be subject to protections of the Constitution, and since they were labelled as "Illegal enemy combatants" they would not be protected by the Geneva Conventions. G.W.B. gleefully proclaimed this,.but years later a Federal Judge refuted it.
Dick Cheney extracted confessions of a connection between bin Laden and Saddam Hussein to justify the Iraq invasion.
Prisoners included:
Farmers in the wrong place at the wrong time.
Some kidnapped by Bounty Hunters traded with US troops.
Some who had been seen speaking to someone who was thought by someone else to be involved in terrorrism.
At least 95% probably had NO knowledge of the attacks of 9/11 .Why were they detained for so long before release?
Rumsfeld, when asked if those who were considered innocent would soon be released, replied: "We'll continue to hold them for some time in case they can provide us with some useful information in the future".
William J. Haynes II, involved in the Bush torture policies, in a discussion with the Military Commission's Chief Prosecutor, said "Wait a minute , we can't have acquittals. If we've been holding these guys so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions"
Another motive for prolonged detention was to prevent the spread of knowledge by released prisoners that horrific torture was going on in our prisons.

[lewmanbubba]

Need I remind America Iraq had no wmd's, need I remind America Iraq was not connected to Alqueda,
need I remind America Iraq had nothing to do with the Towers ( 9/11 ). We attacked them because of something they might do maybe some time in the future. That America is Terrorism. We are the terrorist
so why are these people in war camps. They have done nothing other than to protect themselves from an attacking force that took control of their country. Their only sins were that they lived under a dictator
that America put in power and had lost control of and wouldn't give us a good deal on OIL. Send them HOME

[Norge]

Amen.

[fairtaxnow]

CHANGE! YES WE CAN!

What a joke!

[ricchase]

Without a convincing official explanation to the contrary, it can be safely assumed that the primitive, dangerous and deadly, internationally illegal "methods" of interrogating prisoners in Guantánamo is only one of the embarrassments the government is wishing would simply disappear. There is the extent of the torture and on whom. And just how many of these people are completely innocent? And to what degree are others actually "guilty" of aggression towards America? And the few "too dangerous to ever be...." released, let alone be tried in a criminal court. Which of course is exactly the arm of law enforcement that should have spearheaded the entire thing from the get go. I'm talking 9/11 as well. None of this "terrorist" business is of a military nature. Law Enforcement of a wide combination of levels, I'm convinced, would and could be far more effective and efficient.

While these human beings are being denied a criminal trial, with real lawyers and real law, the government­.....Obama included(!), stand a very real chance of actually further alienating the very people they are trying to suck up to. If he has to be forced to acknowledge these prisoners are humans, and have basic human rights, it will too late. It is disheartening to see those rights denied, by the United States of America. The window to transparency is closing. America would go a long way towards regaining our dignity by giving the these prisoners some of their own.

[CitizenLegislatorCC]

Actually, Andy, your admirable report is too kind - as was Admiral Hutson - to the morally-compromised self-worshippers on the Senate Armed Services Committee.

As an American citizen, I don't need to soft-pedal the contemptible behavior - of privileged Americans entrusted with upholding the law and setting standards for our government, who instead sneer at the laws of war while trying to point fingers at foreigners for allegedly violating the laws of war FAR LESS than we have since 2001. For my money, Darrel Vandeveld's expert testimony to the House on Wednesday told the unvarnished truth, without unnecessary fawning.

Riddle me this: You say the Senate Armed Services Committee should revise "their still amorphous policies" about military commissions [though choosing to honor the law isn't a "policy" choice in my book]. But what's "amorphous" about definitive MILITARY COMMISSIONS LEGISLATION THAT PASSED OUT OF THE ARMED SERVICES COMMITTEE BEFORE TUESDAY'S HEARING EVEN TOOK PLACE??

Legislation that passed out of committee, was "read twice" in the Senate and placed on the Calendar the day BEFORE the hearing, and is now ready - according to Levin (and therefore Reid) - for Senate floor debate NEXT WEEK! Chairman Carl Levin knows exactly what he's doing here - and it is NOT listening to the likes of veterans Hutson or Vandeveld so as to make amendments to his pre-chosen language, nor postponing his secretly-c­onstructed FY 2010 defense policy bill for sober public consideration of this vital subject.

Forewarned is forearmed.

[Andy Worthington - Huffpost Blogger]

How I dislike discovering that I've been "too kind" when it comes to the continuing iniquities of Guantanamo. Thanks for the sobering comments, and thanks also for mentioning Darrel Vandeveld's testimony to the House Committee, which I'll be covering soon.

I now consider myself forewarned!

[Andy Worthington - Huffpost Blogger]

My more detailed update, which addresses the Senate Committee's legislation, and looks in depth at Lt. Col. Vandeveld's compelling testimony, is here:
http://www.huffingtonpost.com/andy-worthington/former-insider-shatters-c_b_229978.html

[serena1313]

Something many keep overlooking: the majority of detainees are not dangerous criminals. Two examples:

Granted al Janko admitted staying at an al-Qaeda guest house for 5-days and 18 days at a training camp as a refugee, however, later al-Qaeda suspected he was a US spy. So for 3 months Janko was tortured until he admitted that. Afterward he was then handed over to the Taliban and imprisoned for another 18 months. Then the US finds Janko, along with a video showing al-Q torturing him that US government lawyers used as proof of association to prosecute him.

Mohammed Jawad was captured at age 12 in 2002. Despite all evidence has been discredited, his torture-induced confession was ruled inadmissible by a military judge and 7 years of solitary confinement Jawad remains locked-up at Guantanamo. Even with the lead prosecutor, Colonel Vandeveld 's sworn affidavit in addition to Jawad's interrogator, who testified as a defense witness, efforts to free him, the US won't let him go.

These are only two out of hundreds, thousands of similar stories.

I took Obama at his word, based on his record on human rights, but that trust was misplaced.

[MikeDu]

I was concerned during the campaign that candidate Obama, after using Mass governor Deval Patrick's miracle-working campaign team, would then wind up *governing* like a Deval Patrick too (ask anyone from Massachusetts what that means). I voted for the guy anyway. I must say, Obama had better start pulling some rabbits out of his hat pretty soon. I did not vote to see a hybrid H. Clinton/Bush Jr. foreign and domestic policy established. I want so see some change I can believe in!

[Darwin256]

Though I support him, our President, a Professor of Constitutional Law, could not have discredited himself more than he has on this issue.

[mountclemens]

I applaud your continuing attention to this important drama.

Meanwhile, may I ask: Would you please give some attention to the length and complexity (readability) of your sentences? The subject is already jargon-filled and complex. We want people to read and learn. And we want them to read your next post about this subject, too. But they won't return if their brains hurt.

Two examples from your post: 1. The first sentence in the 2nd paragraph (including "was not assuaged"). I'll bet a lot of people gave up at that point. 2. The final sentence (in which the dashed interruption is far longer than the main clause).

I know, some brainiacs are going to tar me as a simple-minded meddler. I've been a writer and editor for a newspaper, tv news, newsletters, and a magazine. It's a little free advice from journalist to journalist.

Again, thank you, Andy Worthington, for staying on this story.

[just saying]

Of course we all know that journalism strives to present its material to the average 3rd grader...dummy that stuff down guys!

[WildBill]

Trials designed to prevent acquittals and claims that prisoners can continue to be held even if acquitted after trial are Show Trials, a hallmark of the Stalinist era and other dictatorships in the last century. I believe that if the prisoner cannot be tried, for whatever reason, they should be released. That belief is a hallmark of a democratic legal system. Show Trials make a mockery of our legal system and should not even be considered when one contemplates the potential for harm to the system, let alone the prisoner, who may be caught up in some Kafkaesque hell. Show Trials are a sham and end in bogus justice.

[taikan]

"He then said that federal courts -- Title 18 courts -- "appear to be the first preference," because "the act of violence that was brought against civilians was a violation of Title 18 as well as an act of war.'""

I hate to break it to you, but there is no such thing as a "Title 18 court." There are, however, Article III courts (i.e., courts established pursuant to Article III of the Constitution) that have jurisdiction over cases that arise under the Title 18 ("Crimes and Criminal Procedure") of the U.S. Code.

[mcmchugh99]

If there's no possibility of being acquitted, then why bother to have a trial at all? Even in the trials of major Nazi war criminals at Nuremberg in 1945-49, some defendants were acquitted in almost every trial, which is not to say that they were innocent babes, only that there was not enough evidence to prove the charges in the indictments. (Cold War politics was involved in some of this, to be sure.) In these cases, it's hard to argue that any of them are morally worse than what was on trial after World War II, so there is no reason they should not have the benefit of the same legal protections and procedures those defendants had.

Why not use the regular federal courts and let the chips fall where they may? Or set up a special tribunal along the same lines as Nuremberg, which had three or four civilian judges, military prosecutors, and defense lawyers the defendants chose themselves. If some of them are acquitted, then send them back to where they came from. There's no guarantee in any trial process that the bad guys won't walk away at the end. It happens every day.