With prosecutions of Guantanamo terrorists, 2011 a critical year

By Professor David Glazier

As my contribution to the ""11 on '11" discussion, I would like to identify one of the most significant challenges facing the U.S. government next year as being how to prosecute Guantánamo detainees for terrorism-related offenses. The issue is particularly key right now because the House of Representatives recently voted an outright ban on the transfer of detainees from Guantánamo to the United States for any reason. A logical consequence if this measure should become law would be that it would lead to more military commission trials.

Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic "convictions" at Guantánamo, there is a persistent myth that military commissions are a superior forum for trying terrorists. This has been fueled recently by media spin on the federal court trial of Ahmed Ghailani in New York. Although Ghailani was convicted of a serious offense and will probably receive a life term when he is sentenced in January, both conservative critics and mainstream news outlets have chosen to describe the outcome as a "near acquittal" rather than the substantial victory it represents, particularly given the fact that the defendant was held in CIA black sites and subject to coercive interrogation, if not outright torture.

Despite popular perceptions to the contrary, it is the military commissions which pose much greater risk of failure in terrorism trials. Their serious legal flaws provide a number of grounds on which convictions can (and objectively should) be overturned while their ad hoc proceedings with rules made up on the fly have regularly proved embarrassing to the government and threaten to compromise larger national interests. I address these issues in much more detail in a draft article entitled "Still a Bad Idea: Military Commissions Under the Obama Adminstration."

The five commission cases completed to date all were based on extremely questionable applications of the substantive law involved. Although the commissions are justified based on the law of war, virtually all experts agree that the primary offenses charged to date--conspiracy and providing material support to terrorism--are not crimes that can lawfully be prosecuted by a law of war tribunal. Youthful Canadian defendant Omar Khadr was charged with several additional offenses, including murder in violation of the law of war, which could be war crimes in some circumstances, but not under his factual situation. Three of the five cases--those of David Hicks, Ibrahim al Qosi and Khadr--were resolved by plea deals which required waiving all right to appeal. Although the commissions are supposed to be based on court-martial practice, the rules governing that tribunal forbid plea deals requiring waiver of appellate rights. But in these cases the waivers ensure that their serious shortcomings should evade judicial review. Salim Hamdan, in contrast, has appealed his conviction. And although Ali al Bahlul forbade his assigned government lawyer, David Frakt (a law professor, Air Force Reserve judge advocate, and son of former Loyola Law School, Los Angeles Dean Arthur Frakt) from mounting any defense, Frakt nevertheless managed to preserve some issues for appeal as well. Hamdan has now been a free man in Yemen for almost two years, but his case has still not even gotten through the first tier Court of Military Commission Review (CMCR), highlighting the fallacy of the belief that military defendants will administer justice more efficiently than their civilian counterparts. Indeed, trial experiences to date suggest that military defendants are in over their heads dealing with disruptive courtroom conduct and the unprecedented legal issues posed by these cases.

There are other legal questions raised by the commission process that also provide grounds for legal challenge that are absent from federal trials. Supreme Court precedents, for example, have only upheld the authority of military commanders to convene commissions in the theater of operations and to try acts committed during the interval from the "declaration of war" until the conclusion of a final peace treaty. Trying any pre-9/11 conduct is thus problematic, as is the use of a civilian official without any command authority to convene trials. Other potential flaws include the inability of the defendants to select counsel they trust, apparent use of evidence obtained through coercion despite the Military Commissions Act of 2009's categorical ban, and a substantial inequality in resources and access to witnesses between the government and prosecution. The Supreme Court's 2008 decision in Boumediene v. Bush also suggests that courts will find that at least some "fundamental" constitutional rights apply to these trials even if the full Bill of Rights do not, and the denial of equal protection in trials legally barred from trying Americans and politically denied authority to try British nationals may well also be fatal to them.

If reviewing courts are committed to justice, any of these flaws by themselves could form the basis for overturning any convictions rendered and halting further trials. Collectively theses flaws will undermine the credibility of any verdicts returned, and result in a chilling counter-terrorism cooperation by our friends and allies, while fueling recruitment and fund raising by our adversaries.