Here at Close Guantánamo, we have been campaigning since our founding over five years ago to close the prison at Guantánamo Bay, Cuba, because, as we explain in our mission statement, "Guantánamo harms our nation every day it stays open, and it continues to serve as a potent symbol for terrorist recruitment. Guantánamo also undermines our bedrock commitment to the rule of law, making that fundamental principle less secure for all Americans."
In practical terms, most of our opposition to Guantánamo’s existence has focused on the injustice of indefinite imprisonment without charge or trial. During President Obama’s last five years in office, we persistently encouraged him to release the men unanimously approved for release by high-level, inter-agency government review processes, including the Periodic Review Boards. These began in November 2013, but their deliberations ended up dominating much of the discussion about Guantánamo in his last year in office.
However, we also recognize that, while failing to charge prisoners with crimes and to put them on trial, or to treat them as soldiers and to hold them according to the Geneva Conventions, is an inexcusable derogation from internationally accepted norms regarding imprisonment, the situation for those facing trials at Guantánamo is, fundamentally, no better. Just ten of the 41 men still held are facing, or have faced trials in the military commission system launched under George W. Bush in 2001, revived by Congress in 2006 after the Supreme Court ruled it illegal, and — ill-advisedly — revived again under President Obama in 2009, but the system remains unfit for purpose, and a betrayal of U.S. values.
We have spent some time covering the commissions here — most recently in Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a "Poisoned Chalice," a Betrayal of the Constitution and the Law, a cross-post, with my commentary, of the text of a powerful speech delivered at a national security conference at Georgetown University by the commissions’ Chief Defense Counsel, Brig. Gen. John G. Baker, and in another article entitled, In Contentious Split Decision, Appeals Court Upholds Guantánamo Prisoner Ali Hamza Al-Bahlul’s Conspiracy Conviction, and I have also covered the commissions for Al-Jazeera, in an article entitled, Guantánamo torture victims should be allowed U.N. visit, and on my website, in an article entitled, Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions.
Below, we’re delighted to be cross-posting a new — and devastating — analysis of the commissions’ irredeemable lawlessness by Michel Paradis, a senior attorney for the Department of Defense, who has represented several Guantánamo prisoners over many years. The impetus for Paradis’ article — in America: The Jesuit Magazine — was the filing of two cases before the Supreme Court, but his overview of the system, which he describes as a form of legal apartheid, is timeless. As he states, the commissions "are notoriously flawed. Despite costing more than a billion dollars so far, they have yet to produce a single conviction that is not tainted by legal doubt," and they "are also an embarrassment to American standards of due process," because "[l]ax rules of evidence allow for the admission of everything from 'hearsay' (legal jargon for rumors) to evidence derived from torture."
As Paradis also states, "all of this is possible only because the Military Commissions Act, the law creating these tribunals, limits their jurisdiction to the trial of noncitizens — and only noncitizens. That means there are 43 million people residing in the United States who are subject to this law. But the terrorists responsible for the massacres at San Bernardino, the Pulse Nightclub in Orlando, Fla., and Fort Hood, as well as the Boston Marathon bombing, are not. Those attacks were all perpetrated by citizens who must be tried in the real court system, where nearly 500 suspected terrorists have been successfully prosecuted since Sept. 11, 2001."
Unfortunately, it appears that the Supreme Court will not decide whether to proceed with the two cases submitted to it until September, but for those who want to know more about the cases, we recommend a recent National Security Law Podcast in which Steve Vladeck of Just Security and Bobby Chesney of Lawfare look at the two cases: of Abd al-Rahim al-Nashiri (currently involved in interminable pre-trial proceedings), whose submission "could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11," and of Ali Hamza al-Bahlul, originally convicted in 2008, but whose conviction has partly been overturned on appeal, whose case "could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict." See the Nashiri petition here, and Bahlul is here.
- Andy Worthington, April 21, 2017
The Guantánamo Bay detention camp presents one of the great political, legal and moral dangers of our time. Of the hundreds of men held there over the past decade and a half, 41 remain. Only 10 of those are at some stage of prosecution before the special Guantánamo tribunals, the so-called military commissions. That figure includes five men accused of planning the Sept. 11, 2001, attacks.
As a senior attorney for the U.S. Department of Defense, I have represented several Guantánamo detainees slotted for trial. I submit that the single greatest danger these tribunals pose is the fact that they are built upon a form of apartheid; the Guantánamo tribunals are a separate and unequal justice system into which noncitizens have been segregated. That creates a precedent that endangers us all.
Two cases going before the Supreme Court in the next few months challenge the constitutionality of the Guantánamo tribunals on various legal grounds. But the most important question the court will have to answer is whether the war on terrorism has made obsolete the constitutional commitment to equality before the law.
The Guantánamo tribunals are notoriously flawed. Despite costing more than a billion dollars so far, they have yet to produce a single conviction that is not tainted by legal doubt. They have been bogged down for a decade by uncertainty over what the law is and the exorbitant expense of maintaining an ad hoc court system on an isolated naval base in Cuba. The alleged perpetrators of the Sept. 11 attacks are not expected to stand trial until at least 2020, depriving the 3,000 people who died on that day, and their families, of justice for over a generation.
These tribunals are also an embarrassment to American standards of due process. They are subject to routine political interference, are often conducted in secret and are presided over by judges who lack independence. Lax rules of evidence allow for the admission of everything from "hearsay" (legal jargon for rumors) to evidence derived from torture.
I suggest that all of this is possible only because the Military Commissions Act, the law creating these tribunals, limits their jurisdiction to the trial of noncitizens — and only noncitizens. That means there are 43 million people residing in the United States who are subject to this law. But the terrorists responsible for the massacres at San Bernardino, the Pulse Nightclub in Orlando, Fla., and Fort Hood, as well as the Boston Marathon bombing, are not. Those attacks were all perpetrated by citizens who must be tried in the real court system, where nearly 500 suspected terrorists have been successfully prosecuted since Sept. 11, 2001.
There are many legal reasons that the Supreme Court should strike down this segregation of the justice system. Most important, though, is that for all the dark periods of bigotry and national danger in U.S. history, this is the first time that we have retreated from the constitutional commitment to equal justice under law that has governed this country since the end of slavery. In fact, in every previous use of military tribunals, including those used to try Nazis during the height of World War II, citizen war criminals were tried on equal terms with noncitizens. The only countries that made the distinction now being made in Guantánamo were Germany and Japan. And after the war, the United States Army prosecuted the German and Japanese judges and lawyers involved in these trials for denying the most fundamental fair trial guarantee: the application of the Golden Rule.
In his poem on the rise of the Third Reich, Martin Neimöller warned us that illiberalism accretes from the outside in. It is rarely sudden. It relies on precedent. "First they came for the Socialists, and I did not speak out — Because I was not a Socialist," he wrote, as he confesses to keeping silent as they then came for the trade unionists and then the Jews. "Then they came for me — and there was no one left to speak for me."
The Guantánamo tribunals have become a laboratory for the bare minimum of due process that the public can be convinced to accept. Each aberration, each shortcut on the rules of evidence, on torture or on judicial independence becomes a precedent. When Guantánamo was opened, the Bush administration intended it to be "the legal equivalent of outer-space." But the truth is that it is only a few hundred miles from the American shore.
The Guantánamo tribunals perpetuate a naïve prejudice that the rule of law is a luxury, a waste of time or a privilege belonging to "us" and not to "them." This paradigm is dangerous because the rule of law that we depend upon to protect us, to enforce our contracts and to secure our rights is a fragile thing. It depends on a shared confidence in the norms that give judges, courts and law their power to protect us from "them." As the Rev. Niemöller reminds us, we are foolish if we think that being quiet in the face of injustice will keep us safe and on the inside; that we will remain with the "us." What we do to the least of our brothers and sisters eventually becomes the rule for us all.