Guantanamo Military Commissions Stall Again: Time to Move On

04/06/2015 02:27 pm ET | Updated Jun 06, 2015

How long will it take for the government to admit that the military commissions at Guantanamo Bay just aren't working?

While closing arguments began Monday in the Boston Marathon bombing trial, moving toward some resolution for victims and their families, the trial of the September 11, 2001, terrorist attacks slated to eventually take place at Guantanamo is nowhere near even beginning.

As the Miami Herald's Carol Rosenberg reports, military judges have canceled the last three court hearings scheduled at Guantanamo, shuttering the fledgling court for months. Although the latest order is still secret, the judge presiding over the case of the five alleged plotters of the 9/11 attacks has reportedly canceled the week of hearings planned for later this month because the Justice Department filed a secret document about the still-secret circumstances of an FBI investigation of defense attorneys in the case. First discovered by the defense teams a year ago, the supposedly since-closed investigation has derailed progress in the case ever since.

And that's just one case. The judge presiding over the case of Abd al Rahim al-Nashiri, the alleged mastermind of the bombing of the 2000 USS Cole Navy ship in Yemen, canceled hearings scheduled for this week because the government appealed a ruling limiting prosecutors to producing evidence pertaining to the charges originally filed in the case. The appeal will likely take months to resolve. Even when the Pentagon appellate panel issues its ruling, however, its legitimacy will remain in question because Nashiri defense attorneys are challenging the panel's composition in parallel legal proceedings in a federal appeals court.

Meanwhile, last month, Judge J.K. Waits, a U.S. Navy captain based in Naples, Italy, canceled without explanation hearings scheduled to take place at Guantanamo in the commissions case of Abd al Hadi al Iraqi, an alleged al-Qaeda commander. Judge Waits had been expected to consider defense lawyers' arguments that the government had unlawfully tried to influence the courts by ordering all military commission judges to move to Guantanamo. That order has since been rescinded, and the Defense Department official who issued it has resigned.

If this all sounds a little absurd, it is. These sorts of problems don't occur in regular terrorism trials held in U.S. federal courts, because prosecutors have brought hundreds of terrorism cases there and know what evidence is acceptable. Judges hearing those cases are experienced at handling complex international terrorism charges, and the legitimacy of those charges isn't being questioned at every turn. Established rules govern the handling of sensitive and classified evidence, which is routine. And unlike the military commissions, which operate under a cloud of suspicion, U.S. federal courts run by politically independent judges are respected around the world.

At the military commissions, by contrast, virtually every hearing seems to raise unexpected and intractable issues unique to Guantanamo. At the last 9/11 case hearing in February, one of the defendants disrupted the case to announce that that a government-cleared interpreter assigned to assist his Guantanamo defense team had earlier worked in a secret CIA prison where he and the other men had been tortured. Earlier hearings revealed the government had access to defense lawyers' computers, and that their supposedly confidential meetings with clients had all taken place in rooms wired for audio and video surveillance. Each time, the judge had to adjourn hearings to allow the lawyers to investigate and argue over the implications. Regardless of the eventual outcomes, these problems not only delay but cast doubt on any verdict that may eventually result.

That's part of why, as former Guantanamo chief prosecutor Morris Davis wrote recently, the court is on its sixth chief prosecutor in a dozen years. As Davis put it: "If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team would almost certainly be a loser." So are the Guantanamo military commissions. Just look at their record: Only eight individuals have been convicted by commissions since their inception, and four convictions have already been overturned on appeal. Meanwhile, some 500 terrorism cases have been successfully prosecuted in U.S. federal courts in the same time period.

It's time for the U.S. government to put an end to this fiasco. The legitimacy of such important terrorism cases as the September 11 attacks that killed nearly 3,000 people on U.S. soil is not something to be disregarded, nor is the impact on the victims' families, who have yet to see justice done. These cases shouldn't be maintained where they're not working. All the military commission cases could be reliably tried in the seasoned and successful U.S. federal court system. It's time to accept that this venture isn't working, pack up the military commissions, transfer the cases to the United States, try the alleged perpetrators, and move on.