Responding to John Dehn’s Letter to the Editor on the 9/11 Military Commissions

I agree with John Dehn that the military justice system is far more fair, orderly and efficient than the military commission system. My argument for why civilian federal courts are the better place to try the 9/11 case is based largely on the fact that the civilian system – not only the judges, prosecutors and defense lawyers, but the laws and rules themselves – are far better equipped to handle complex international terrorism cases than is any military system, whether operating under the Uniform Code of Military Justice or the Military Commissions Act. In a case as complex as the 9/11 prosecution, that’s important.

Dehn takes my point about “military personnel” out of context. Of course military lawyers have experience with the U.S. criminal justice system, by working on cases brought pursuant to the U.S. military’s criminal justice laws: the Uniform Code of Military Justice.  In my observations of their work at the military commissions, I’ve been consistently impressed by the military lawyers’ performance and dedication. I referred in my post, however, to the inherent challenge of bringing this complex terrorism case on the Guantanamo Bay naval base, at a prison designed as a CIA interrogation center, and run on a daily basis by “military personnel who have little or no experience with the requirements of the American criminal justice system” – meaning the prison guards and their commanders.

Unlike a military prison designed to hold defendants charged with crimes, the Guantanamo Bay detention center was created to interrogate foreign captives, most of whom the U.S. government had no intention of ever prosecuting. That’s why the rooms where lawyers interview their clients were all secretly wired for audio and video surveillance. It’s also why defense lawyers have had to come to court repeatedly to beg the judge to order the guards to stop searching their clients’ legal documents, which under any U.S. legal system are considered confidential.

Col. John Bogdan, the current prison camp commander, exemplifies part of the problem. Testifying at the last 9/11 defendants’ pre-trial hearing in December, he said he had no experience running a detention facility holding defendants facing the death penalty, as these five men are.  In fact, he said he didn’t know the difference between the roles of lawyers representing detainees in habeas corpus petitions (civil petitions brought in U.S. federal court challenging the legal basis for detention) and the those of lawyers representing detainees in the military commissions – a military court specifically designed to try war crimes, including capital crimes, that could lead to the defendants’ executions.  Needless to say, these legal procedures have different purposes, different outcomes and follow vastly different rules.

The prison commander testified at the military commissions last month that he has no experience whatsoever running a prison in accordance with the mandates of the U.S. Constitution.  His previous experience running detention centers was in Iraq and Somalia.  In neither location did the U.S. government give detainees real trials, let alone accord them the U.S. Constitution’s requirements of due process.

The result of that lack of experience with the U.S. justice system, as I explained in my previous post, is that the Guantanamo detention center is governed by a slew of rules that make no sense when applied to defendants on trial for war crimes punishable by death. Those rules compromise the ability of defense lawyers to fairly and ethically represent their clients. That’s why we’ve now spent the past year hearing the lawyers’ complaints about those rules, and are still years away from seeing a trial on the merits arising from the most heinous mass murder in U.S. history, which took place more than 12 years ago.

Contrast that with the progress of the case of Suleiman Abu Ghayth, Osama bin Laden’s son-in-law, an alleged al Qaeda propagandist charged with conspiring to kill Americans. Arrested on February 28 of last year, Abu Ghayth was brought before Judge Lewis Kaplan in the U.S. federal courthouse in New York in early March, where he was publicly arraigned. Judge Kaplan has already heard and rejected several motions to suppress evidence. The government filed a superseding indictment in December.

Abu Ghayth’s trial is now scheduled to start Feb. 3.  That’s less than one year from the date of his arraignment.

I’m not suggesting that a quick trial is always a fair trial or that the Abu Ghayth case is as complex as the 9/11 case. But anyone who’s observed Judge Kaplan try a terrorism case (I watched him try Ahmed Ghailani, accused of participating in the 1998 bombings of US embassies in East Africa, for example) has to admire his obvious understanding of the difficult issues involved and the procedures required to handle them, and the efficiency and even-handedness with which he handles all of a case’s complexities.

One can hardly say that for any of the cases handled at the military commissions.  I agree with Dehn that the problem with the military commission cases began when civilian leaders in the Bush administration decided to authorize torture, which appalled many in the U.S. military. Indeed, retired military leaders have been some of the strongest opponents to the so-called “enhanced interrogation techniques” used during the Bush years.  And I agree completely that the average military lawyer does not want to “sacrifice either the honor of our nation or the rule of law to the perceived exigencies of the day.” But the fact that civilian political officials created the problem doesn’t mean there’s now no role for experienced, respected and independent federal civilian courts to finally bring these men to justice.  If, as Dehn asserts, “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,” then that’s all the more reason to move the cases to the civilian system, where judges with life tenure are at least more likely to be perceived as neutral arbiters independent of government influence.

Most importantly, though, those judges with life tenure who have handled these kinds of complex cases are working within a system that has clear laws, rules and procedures of which all participating counsel are well aware. Under that system, judges and lawyers don’t have to waste years of government resources and try the patience of victims’ family members litigating which rules apply, how often the lawyers can visit their clients, and whether the government gets to listen in. They don’t have to figure out from scratch how to try the most important terrorism case in U.S. history in a makeshift court system based in a foreign country with which we do not even have diplomatic relations.

That’s not to impugn the integrity of anyone running or operating the prison camp in Cuba. Trying the most complex criminal case in U.S. history is simply not what Guantanamo military personnel were deployed, prepared or equipped to do.  We have no right to expect them to perform miracles. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).