Letter to the Editor: Reply from John Dehn to Daphne Eviatar on the 9/11 Military Commissions

[Editor’s Note: Be sure to see Daphne’s response to this letter to the editor, which was also published on January 6, 2014.] 

Daphne Eviatar’s recent post, “Time to Retire Military Commissions” was largely an accurate portrayal of the fiasco that the 9/11 military commissions have become.  I have been truly aghast (if not entirely surprised) by some of the outrageous government conduct surrounding the commissions—particularly the various intrusions into the attorney-client relationships of the defendants and their lawyers.  However, Eviatar’s post contained an unnecessary mischaracterization of U.S. military personnel involved in the proceedings.  I therefore write to set the record straight.

The problem with the military commissions process is not that “military personnel,” in Eviatar’s words, “have little or no experience with the requirements of the American criminal justice system.”  The problem is that civilian intelligence agencies, aided by elements of the (civilian) Department of Justice, have thoroughly invaded and corrupted the military commissions process rather than allow the military and its lawyers to run it.

In fact, military lawyers have largely created what is perhaps the fairest criminal justice system in the country and the world.  If Eviatar spent much time reviewing the Uniform Code of Military Justice and Manual for Courts-Martial, she would realize that they provide defendants with far greater rights than even the federal criminal justice system that she believes the only adequate tonic for what ails the 9/11 military commissions process.  Should the case against the 9/11 defendants be moved to federal court, however, there is no guarantee that these civilian agencies would not similarly attempt to corrupt the federal criminal justice system in this particular case, though perhaps they would be less obstreperous in doing so.

Indeed, had the advice of military lawyers been heeded, there would be no need for these civilian agencies to conspire to monitor everyone and everything associated with the 9/11 case to prevent further revelations regarding “enhanced interrogation” and other programs.  Those programs would simply not have existed, or would be completely disclosed to the Court for a review of their relevance.  Had the military been solely responsible for detaining and interrogating the 9/11 defendants and for determining the law applicable to those detentions and interrogations, there would probably be little to no need for the government to conceal and defend so much of its prior treatment of them.

It is the military’s strong adherence to the constitutional concept of civilian control of the military as well as its commitment to the rule of law that has been its undoing in the 9/11 cases.  There is no doubt in my mind that military commissions were selected as the vehicle for “justice” in the 9/11 cases because the CIA and DoJ felt that military personnel, including counsel and judges, could be more easily monitored and controlled (for example, by laws prohibiting the disclosure of classified information, I do not mean to imply direct control) than those who are typically involved in the civilian criminal justice system.

This is not to say that the U.S. military and its lawyers are infallible.  Some have all too firmly embraced the intelligence agencies’ and DoJ’s constitutionally suspect vision of what is necessary to protect this country from terrorism.  On the whole, however, I suspect the average military lawyer is far less willing to sacrifice either the honor of our nation or the rule of law to the perceived exigencies of the day than these civilian agencies have proven to be.

John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law and a retired Army lawyer. 

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