This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
The fix is in, as they say. In this case, it’s a much-awaited Pentagon request to Congress to make a series of changes to the rules and procedures governing the military commissions at the Guantánamo Bay military base in Cuba. These are just “ways to ease burdens on the litigants and the judges to facilitate a more efficient process,” a Pentagon spokesman told The New York Times last week. That all sounds innocent enough. After all, the most important case in the military commissions, the prosecution of the five alleged plotters of the September 11 attacks, has been pending for four years, without even a trial date in sight. And that’s for the most devastating mass murder committed on US soil in American history — nearly 15 years ago.
But consider more carefully the administration’s requests to Congress, sent to the House and Senate Armed Services Committees two weeks ago, and the whole thing starts to sound more suspect. For one thing, the 9/11 case is already well underway, at least in the form of discovery and pretrial hearings. The presiding military judge, Army Col. James Pohl, has been a stickler for requiring the defendants to appear in court for their hearings, notwithstanding their occasionally disruptive behavior. He has excused them only after receiving testimony that each one not appearing has voluntarily waived that right. That’s appropriate, given that these men could face the death penalty, and the Confrontation Clause of the Sixth Amendment ensures them the right to confront their accuser in court.
One of the government’s new proposals, however, would change that, allowing the defendants to appear by video-teleconference rather than in person, so the judges and lawyers can be spared the inconvenience of traveling to Guantánamo.
To be sure, Guantánamo is a very inconvenient place to hold a trial. No one involved in the case actually lives there, except the five defendants, and none of them by choice. Each time there’s a hearing, the government has to fly the judge, lawyers, legal staff, observers, and media from Andrews Air Force Base in Maryland to Cuba, and foot the $90,000 bill each way. (That doesn’t include the costs of lodging.)
But then, it was the Obama administration’s choice to try these cases at Guantánamo. The administration could have tried the 9/11 case in New York in a federal court, for example. Remember that hundreds of terrorists have been tried and convicted in federal courts around the country, more than 50 in Manhattan alone. It chose not to do that, notwithstanding the inconvenience and extraordinary cost of proceeding in Cuba. Four years into the litigation, can it suddenly decide to potentially compromise the defendants’ right to attend all aspects of their own trials in person, for the claimed sake of convenience?
As Brig. Gen. John Baker, the chief defense lawyer in the military commissions system, told Charlie Savage last week, the proposal is an “unfair and unconstitutional” attempt to change the rules “in the middle of the game.”
“Here we are in the midst of perhaps the most important criminal trial in American history, and the government wants to change rules midstream to deny these individuals the right to be present in the courtroom, in violation of the Constitution,” he said.
Congress may agree to the administration’s requests, but surely defense lawyers won’t concede the constitutional point. Although the Supreme Court has not decided whether video testimony satisfies the demands of the Confrontation Clause, the Federal Criminal Rules Committee considered a similar proposal several years ago and rejected it, as defense lawyers have already pointed out.
In a statement accompanying that rejection, Justice Antonin Scalia wrote, “I share the majority’s view that the Judicial Conference’s proposed Fed. Rule Crim. Proc. 26(b) is of dubious validity under the Confrontation Clause of the Sixth Amendment to the United States Constitution,” adding that
a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.
Rather than serving as a means of improving efficiency, this proposal seems a surefire way to get the commission cases tangled in costlier and more complicated litigation that will surely slow their progress even more.
Other changes the Pentagon has proposed include allowing civilian lawyers to represent the defendants instead of military ones; allowing the primary judge on the case to appoint another judge to consider and rule on certain motions (similar to a magistrate in federal court); and making it easier for the government to convert a case from one seeking the death penalty to one seeking life in prison.
On their face, none of these sound particularly shocking. But consider their likely impact.
- Allowing a second judge to rule on motions in a case means a new judge has to get acquainted with an extraordinarily complicated procedural history. The 9/11 case, for example, involves hundreds of rulings on matters that are all new to the military commissions, and which have virtually no legal precedent.
- Allowing civilian lawyers to substitute for military ones may provide defendants more continuity of representation, given how frequently military lawyers are rotated to new assignments; but it also means a defense team may be left without expertise regarding the military justice system, which is the system the judges in these cases are all schooled in. (The military commissions themselves don’t follow the Uniform Code of Military Justice (UCMJ), of course, but rather follow their own set of rules, which are a sort of hybrid of the UCMJ and the Federal Rules of Criminal Procedure.)
- And converting a prosecution from a death penalty case to a non-capital prosecution seeking life in prison means the defendant loses his right to a government-paid “learned counsel” — a civilian lawyer with experience handling death penalty cases. That lawyer may have been representing the defendant, and leading the defense team, since the inception of the case. Now, years into the discovery process, who could fairly take their place?
We could imagine all sorts of nefarious reasons the Pentagon — which is also the prosecutor in these cases — might be proposing to change the rules in the middle of the game. Those could include that the commission cases so far — and the 9/11 case in particular — haven’t worked out as smoothly or quickly as they’d intended. Of the eight commission cases completed, four convictions have been overturned, and five convicts have been released. The only ones convicted and still imprisoned either pleaded guilty or offered no defense at trial, and even one of those, the case of Ali Hamza Ahmad Suliman al Bahlul, is on appeal. The rest of the cases remain stuck in pretrial hearings.
While some of the delays may be caused by the inconvenience of Guantánamo, much more of it has been caused by questionable government conduct, particularly by the CIA and FBI. Their behavior has repeatedly raised questions about whether the government has tainted the military commission proceedings by interfering in the confidential attorney-client relationship between the defendants and their lawyers.
But let’s assume the Pentagon is actually proposing these legal amendments to Congress purely because they want to make the commissions more “efficient.” Given even the handful of obvious problems I’ve outlined above, how could the government possibly believe that would be the actual outcome?