The Big Picture and the Closeup

War Powers, War Lies

Part 10: Kangaroo

Published in the Maryland Daily Record November 18, 2005

          The story goes that Bill Barr first suggested military commissions while the 9/11 ruins were still smoking in New York and Washington. William P. Barr, former Attorney General, told Timothy E. Flanigan, then Deputy White House Counsel, that military commissions were the way to try the bad guys. Not the courts, not courts-martial, but military commissions, a form of adjudication unknown since World War Two.  Flanigan’s boss, White House Counsel Alberto Gonzales, picked up on it and started pushing it in the ad hoc interagency group formed to plan terrorist prosecutions.  The other members of the group were less than thrilled, so Gonzales and Flanigan snatched the planning back from them, and planned prosecutions in strict secrecy, with commissions as the only option.

          Gonzales and Flanigan were intent on commissions and the interagency group was opposed for the same fundamental reason: commissions are not disinterested tools for locating the truth.  They are what lawyer Michael Ratner calls courts of conviction.  Comprised of military officers unconstrained either by civilian due process principles or the Uniform Code of Military Justice, commissions can operate anonymously, secretly, and by idiosyncratic rules.  The thinking of commission supporters was that courts would be overwhelmed by the numbers of detainee defendants, not to mention that judges and juries might be targeted and endangered; that the information to be used as evidence would be highly sensitive and access to it needed to be carefully controlled; that allowing the participation of defense lawyers would slow down the process; and that judicial review should be denied.

          Deeply inimical by their very nature to American habits of adjudication, military commissions are nonetheless permissible in certain circumstances under American law.  A Revolutionary War commission tried and hanged Major John Andre, a British spy.  Numerous Confederate undercover agents were tried by military commissions (and mostly hanged) during the Civil War.  Eight German saboteurs covertly landed on American shores during World War II were convicted by commission, and their sentences confirmed in Ex Parte Quirin (1942).  Common to these cases was that the defendants were not members of the U.S. military (who would have had the privilege of court-martial) nor ordinary POWs, but instead enemy combatants deemed to have broken the laws of warfare. Each of the above cases, however, had to do with one particular kind of offender: a covert and therefore illegal combatant captured and tried on U.S. soil.

          One rather different precedent, however, was of greater interest to the White House lawyers making the case for military commissions: Johnson v. Eisentrager (1950).  Eisentrager had been part of a detachment of German soldiers marooned in China after V-E Day, when the Germans formally surrendered.  Being part of the Japanese Theater of the war, and under Japanese protection, they had continued the fight.  Their continued warfare on Germany’s behalf was illegal, at least in the eyes of the American soldiers who captured them after V-J Day.  They were then tried by a U.S. military commission in Nanking.  When they applied for habeas corpus relief, the Supreme Court denied relief saying that U.S. courts had no jurisdiction to grant habeas abroad, even if U.S. forces were alleged to be violating international law in holding or trying them.  It was an easy leap from this precedent to Guantanamo and elsewhere outside the U.S.

          In keeping with the developing thinking of these advisors, President Bush issued a November 13, 2001 order authorizing commissions, though it did not specify where these would be held.  However, among its features was that the President in his sole discretion would determine who would be subject to trial by military commission, the rules of evidence would be essentially whatever the commissions determined, a 2/3rds vote would suffice for a death sentence, and review would be solely by the President or the Secretary of Defense.  There was no provision for defense lawyers, and no specification of the source of the laws tribunal defendants might be accused of violating.  In formulating the document, the White House lawyers brushed off all suggestions from an alarmed Pentagon legal team that had tried to soften it.[1]  They also ignored that the State Department had just been protesting the use of military commissions by other countries, e.g. to try Lori Berenson in Peru and Ken Saro-Wiwa in Nigeria.[2]

          The reaction of press, academia and much of the bar was swift and appalled.[3]  Perhaps to deflect it, Secretary of Defense Donald Rumsfeld issued an implementing order on March 21, 2002 which addressed one gap alarming to initial commentators: counsel.  Now defendants could in theory employ civilian defense counsel of their choice – so long as counsel could pass the rigorous security clearance – and so long as the defendant could somehow obtain civilian counsel while being held incommunicado and without the means to pay — and so long as counsel accepted the right of the tribunal to issue gag orders.  (Non-optional military defense counsel were also provided for.)  But in other respects the order yielded little to the clamor of those who saw a total inconsistency between the tribunals and the practice and spirit of U.S. law.

          Neal Katyal of the Georgetown Law School and Laurence Tribe of Harvard Law published a blistering attack on the tribunals in the Yale Law Journal in April 2002.  Among their many criticisms was that in our society, detention of anyone has traditionally involved three branches of government: the legislature to set the policy and conditions for detention, the executive to seek it, and the judiciary to impose it. The tribunals, by contrast, were designed to play out solely within the executive.  There were similar complaints from the ACLU and Human Rights Watch.

          The response of the Bush administration, by then busily rounding up Muslim men from every corner of the globe, was slow.  In part, no doubt, this was because at that point the intake process was still ramping up, and interrogation was the priority, not adjudication or release.  But there may have been a sense of caution, as well, because civilian courts were beginning to see habeas petitions filed by self-appointed lawyers for the detainees.  The first case was filed on February 19, 2002.  By mid-2004 there were 13 cases pending in the United States District Court for the District of Columbia, determined to be the venue for cases coming from Guantanamo.

          The cases frequently dealt with a more fundamental issue than whether the detainees had committed crimes: the claim that detainees should enjoy some sort of process to determine whether they should even be detained as enemy combatants in the first place.  It was a reasonable interpretation of the Administration’s public pronouncements that at this point all detainees were considered subject to criminal charges by virtue of their supposed status as illegal combatants (i.e. members of al Quaeda or the Taliban).  Hence it might have been thought that the commissions awaited all of them.  So for the next two years, the commission rules were refined through the release of new orders, and charges were issued against a handful, about a half-dozen, of the hundreds of detainees.

          Moreover, it now appears that by mid-2004 the government was quietly beginning to get rid of detainees it deemed low in both intelligence value and threat, with perhaps as many as 234 being released from Guantanamo alone.  (Some of them were definitely being released, although others may have been rendered up to their native governments for further imprisonment.)  In effect, without benefit of any sort of adjudicatory procedure, the Administration was doing the equivalent of acquitting some detainees and finding others guilty of being enemy combatants.

          The courts, however, had other ideas.  Indeed, as Alan Dershowitz has observed, after the release of the notorious Abu Ghraib photographs in April 2004, it became politically impossible for the Supreme Court to allow the Administration to carry on business as usual with the detainees.  In June 2004, therefore, the Supreme Court handed down Rasul v. Bush, which shocked the Administration by declaring that judicial habeas authority extended to Guantanamo, and that detainees should have access to some form of due process to determine whether they were even enemy combatants.

          The Administration was nevertheless one step ahead of the Supreme Court.  It had already taken account of the possibility it might lose Rasul and be called upon to allow formal adjudication of its identification of detainees as combatants.  Hence, nine days after Rasul, the Government announced a program of Combatant Status Review Tribunals (“CSRTs”).  Having already determined in its own mind who were the combatants, the Pentagon really had no use for further adjudication, but if the Justices wanted adjudication, adjudication the Justices would get.  “Kangaroo court” adjudication, to be sure, but adjudication nevertheless.

          Even the military commission machinery that had been set up for the trial of war crimes proved too cumbersome for the designers of the CSRTs.  In these CSRT proceedings, intended to be held before three military officers, the burden of proof would on the detainees, and they could be and were denied information about who their accusers were and what information was being used to “convict” them.  They were denied lawyers.  Reporters were largely prevented from attending.  Between July 30, 2004 and October 20, 2004, approximately 153 CSRTs were held.  During that period exactly one detainee was found not to be an enemy combatant.  Res ipsa loquitur.

          At this point, Judge Joyce Hens Green of the District Court for the District of Columbia tried to put her foot down.  The Guantanamo cases had been consolidated before her for various matters, in light of her significant experience in intelligence matters.  One conservative judge, Richard Leon, nonetheless opted out so as to preserve the ability to make rulings more favorable to the Administration.  But the majority excoriated the CSRT rules,[4] There had to be counsel, and there had to be reasonable access to prosecution evidence.  These rules were formalized in new CSRT protocols made part of a court order on November 8, 2004.

          It made no difference.  The CSRTs rolled on, and by March 29, 2005, when the tribunals ended, 558 tribunals had been held, and there were only 38 “acquittals.”  And certain language in Pentagon press releases suggested that the “acquittals” only meant the detainees were “no longer” enemy combatants.  So far as I have been able to determine, not one detainee was affirmatively cleared by CSRT of ever having been one.

          Meanwhile, there was trouble back on the military commission front.  In March of 2004, two military prosecutors, Capt. John Carr and Maj. Robert Preston, USAF, quit because, according to the Wall Street Journal, they believed their fellow prosecutors were ignoring torture allegations, failing to protect exculpatory evidence, and withholding information from superiors.  Once the first trial began, on August 24, of Salim Ahmed Hamdan (Bin Laden’s driver), a defense lawyer, Navy Lt. Cmdr. Charles Swift, made an opening statement attacking the fitness of the presiding officer, Col. Peter Brownback, for, among other things, lack of current bar registration and ex parte contact with the Office of Military Commissions.  When Brownback angrily denied the contact, Swift played an actual recording of the conversation.  He also demonstrated that another member, Lt. Col. Curt S. Cooper, did not even know what the Geneva Conventions were.  In fact, only one member of the 6-member panel escaped Swift’s demolition.  Small wonder that an LA Times editorial called the proceedings “something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin.”  While there were later efforts to weed out some of the more incompetent members of the tribunal, Brownback retained his post, reportedly because of close personal ties with the Appointing Authority.

          The Hamdan commission and all the others were derailed when, on November 8, 2004, Judge James Robertson held the tribunals illegal under the Geneva Conventions and due process, among other things.  On July 15, 2005, a panel of the D.C. Circuit, including now-Chief Justice John Roberts, reversed.  But that was not the end.  On November 7, the Supreme Court granted certiorari (Roberts not participating).  Although on July 18, the Department of Defense announced its intent to proceed with the commissions (while improving the rules to exclude evidence not made available to the defense), and charge eight more detainees with war crimes, the commissions appear to be suspended right now.  So this remains a story in progress.

          Objectionable as the use of military commissions and CSRTs to dodge due process and accountability may be, some grim facts must keep it in perspective.  Unfortunately this is not as bad as it gets.  All of the recent cases discussed above have to do with Guantanamo.  The Supreme Court has never suggested that habeas might be available in other places where the U.S. keeps detainees.  For all its horrors, up until now (the hunger strikes proceeding apace there might change this) Guantanamo has been a place where at least detainees don’t usually die.  That is not insignificant, as the ACLU made clear in an October 24 report which revealed that 21detainees appear to have died of homicides at U.S. facilities in Iraq and Afghanistan, some under torture while being interrogated by Navy SEALs and the CIA.

          A report in The Washington Post on November 2 said the CIA had set up secret prisons for terror suspects in eight countries including Thailand, Afghanistan and “several democracies in eastern Europe,” where probably 100 detainees are being kept without any admission by the U.S. they are even there.  (A later though less reliable report suggests the real number may be in the thousands.)  It seems unlikely the detainees there even received either military commissions or CSRTs.  From their even lower circle of hell, they would probably love to face military commissions rather than torturers.  But the Court has never suggested that habeas or any other form of U.S. judicial remedy would be available to such detainees.

          As this is being written, an Iraqi court, trained and financed by the United States, is trying our enemy Saddam Hussein for human rights violations.  And here is the moral, strategic, and tactical problem: How we can expect the world to accord full faith and credit to that court’s eventual verdict when we establish and countenance tribunals that are themselves human rights violations?  A question urgently worth pondering.

[2]   Ratner and Ray, at 79.

[3]   See e.g. here.  Since the publication of this piece, links to a number of other examples have gone dead.  However, I was satisfied at the time that the revulsion was widespread.

[4]   Al Odah v. U.S., 346 F.Supp.2d 1 (October 20, 2004).

Copyright (c) Jack L. B. Gohn