Yesterday, shortly before the scheduled hearing at Guantanamo Bay of the alleged September 11 plotters was cancelled due to an impending hurricane, Brig. Gen. Mark Martins, Chief Prosecutor for the U.S. Military Commissions, spoke to the media. The "reformed" military commissions are fair and accountable, he insisted, lamenting that "some have a penchant for wanting to continue to attack" them.
It was a nice speech for the highly-respected Brigadier General, appointed last fall to lend the third incarnation of the military commissions an air of legitimacy they've long lacked.
But Martins' best efforts and eloquent speeches don't get at the fundamental flaws of the system that those of us watching it complain about. Those are inherent in the system itself, and there's little that Gen. Martins can do about them.
Take, for example, the fact that the 9/11 defendants will be tried not before a neutral federal court judge with life tenure, as are all terrorism suspects and mass murderers charged in a civilian federal court. No, in the military commission, their case is presided over by a judge appointed just for this purpose by the U.S. military. That's the same U.S. military that's still fighting a war against al Qaeda, the group to which they allegedly belong.
The jury, meanwhile, won't be comprised of ordinary citizens chosen for their neutrality to consider the evidence and help decide an appropriate sentence if the men are found guilty. Instead, it will be a set of U.S. military officers, members of that same U.S. military that's still fighting the group to which these men supposedly swore allegiance.
In other words, the U.S. military plays prosecutor, judge and jury in this case. (It also provides the defense lawyers). And, based on the men's affiliation, the military at least appears to have an institutional bias against them. That's not to impugn the integrity of this particular judge or jury. But no matter how honorable each of those U.S. servicemembers are, the fact remains: the deck is, or at least appears to be, stacked high against the defendants. And that affects the legitimacy of not only the ultimate outcome of the case, but of every judicial ruling before and during the trial.
This is precisely why military commissions are only supposed to be used as a last resort, on the battlefield, when the traditional wheels of justice have stopped turning. That the traditional wheels of justice have churned out nearly 500 terrorism convictions in regular U.S. federal courts since 9/11 is all you need to know to determine that trying these five suspects in a special commission on a U.S. military base in Cuba is illegitimate.
Admittedly, most Americans don't care all that much about what happens to five guys who've all at some point confessed to participating in the worst terrorist attack on U.S. soil in American history. Although Martins yesterday made the obligatory point that "an accused is presumed innocent unless and until proven guilty beyond a reasonable doubt," when the government has let the defendants sit in prison for almost a decade and doesn't even bring them to trial 11 years after the crime was committed, it's not surprising that the public now just presumes they're guilty.
But not so fast; here are some important points to keep in mind.
First, many Americans assume the defendants' guilt based on things the men said after they were tortured in U.S. prisons. None of those confessions are admissible at trial because they wouldn't be considered voluntary, and are inherently suspect. Plus, who knows what years of so-called "enhanced interrogation techniques" -- the combination of sleep deprivation, stress positions, mortal threats, exposure, sexual humiliation and, for at least some of them, waterboarding -- has done to their mental state? That casts even more doubt on any subsequent "confessions."
Second, we should all be concerned that the U.S. government is so intent on covering up what it did to these men. Many of the pre-trial arguments scheduled to be heard this week focused on the fact that the U.S. government claims all statements of the five suspects are "presumptively classified." In other words, we can't hear them until the U.S. government has combed through and removed any they claim endanger national security. It so happens that what they claim endangers national security is the defendants' descriptions -- and anyone else's -- of their capture and treatment in U.S. custody.
Martins yesterday took pains to point out that the U.S. government is carefully following the law and protecting us all when it deems information to be classified. He explained the law's three guiding factors:
Any non-disclosure of information, or closure of proceedings, as the Supreme Court has said, requires a showing that the closure "is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." That means the court must employ measures short of complete closure whenever possible to protect the information, while allowing public access to sufficient information to understand the proceedings and the basis for non-disclosure.
The non-disclosure of information or closure of proceedings must be "based on findings that closure is essential to preserve higher values," and those findings must be preserved for appellate review and be "specific enough that a reviewing court can determine whether the closure order was properly entered."
The non-disclosure of information or closure of proceedings cannot be justified on the grounds that the information reveals the breaking of the law or is a source of embarrassment to the government or one or more officials.
That all sounds very reasonable. So why, then, have the commission prosecutors refused to explain why the defendants' statements meet those strict criteria? Instead, the government has insisted that the executive branch alone has the power to decide what's classified, saying in court documents: "the defense may not challenge the government's decision to classify information."
What about the Supreme Court requirement Martins cites that the government make a "showing" that the closure "is necessitated by a compelling governmental interest"? And Martins' point that the showing must be "specific enough" for the court to decide whether the court closing was proper?
Most importantly, if the government doesn't explain why information about the defendants' treatment in CIA custody must be kept secret, then how can we know that the secrecy doesn't violate principle #3 -- that is, it can't be designed to cover up "the breaking of the law" or "embarrassment to the government" or its officials?
Martins yesterday made an eloquent case for the longstanding rules that allow the government to keep some narrow segment of information secret, so long as its secrecy determinations are reviewed by an independent court.
Unfortunately, in one of the most important criminal cases in U.S. history, the U.S. government isn't following those critical rules.
Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar