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After Guantanamo

Americans Expect Better: Guantanamo's Flawed Military Commissions

By Pete Masciola

Colonel Lawrence Morris's contribution to PostGlobal's panel on the future of the Guantanamo detainees ("Military Commissions Are America's Best Option") paints a reasonable and even rosy picture of the current military commission system, with constitutional rights for defendants and a free and open flow of evidence to defense counsel, all legitimated by a long-standing Constitutional tradition. Would that it were so. Unfortunately, the reality is entirely otherwise.

I will start with the history. According to Colonel Morris, "Military commissions are a long-validated, Constitutional process for adjudicating war crimes." There is indeed a long history of their use to try war crimes, but that history is checkered, to say the least. Throughout our history, military commissions have been subject to stinging criticism, especially when - as in Guantanamo Bay - they have been used for purposes that stray from their only legitimate employment: as tribunals of last resort justified by genuine military necessity. Colonel Morris fails to mention, for example, that General Andrew Jackson was harshly criticized for his high-handed use of military commissions during the War of 1812 and the Seminole War, and was fined in 1815 for defiance of a federal court's writ of habeas corpus. Nor does Colonel Morris mention the Supreme Court's 1868 decision in Ex parte Milligan, one of its earliest and most important decisions upholding individual rights, in which the Court rebuked the Lincoln Administration's employment of military commissions to try citizens when the civilian courts were open and available. Indeed, one of the precedents that Colonel Morris does cite - President Roosevelt's decision to try German saboteurs by military commission in 1942 - does not help his case much. The President's right to use a military commission was ultimately upheld by the Supreme Court in Ex parte Qurin, but that decision, like the Court's Korematsu decision later in the war, is viewed by many as a low-point of the Court's war-time decision making. (Justice Scalia, for example, has referred to Quirin as "not this Court's finest hour.") This is a history that should put us all on guard - not reassure us - about the validity of the military commission process at Guantanamo.

Second, Colonel Morris claims that "[t]he government has provided hundreds of thousands of pages of discovery (government evidence) to the defense and facilitated the declassification of tens of thousands of government documents." The problem, however, has been with quality, not quantity. Whatever the raw numbers of documents turned over to date, the government has remained recalcitrant with respect to the key documentary evidence in these cases - above all, the evidence of torture, mistreatment and abuse that calls into question the many alleged confessions and other statements upon which the government relies.

The problem here is not necessarily prosecutorial misconduct, but mismanagement and overclassification. The government's insistence on the classified nature of all evidence pertaining to the detainees' treatment (and abuse) smacks more of cover-up than legitimate security needs. Indeed, it appears that the prosecution itself has had trouble obtaining full disclosure of relevant evidence from some of the government intelligence agencies. Until all of the key evidence is gathered and properly evaluated by the prosecution - a task assigned by President Obama to one of the task forces now reviewing the detainees' cases - and then provided to the defense, there will be no fair criminal process against these individuals.

Finally, Colonel Morris insists that, "Commissions procedures include protections that most Americans would expect in most any criminal trial, because they are fundamental to a valid truth-seeking process and reflect Americans' devotion to due process." Commissions defendants are in fact provided with certain rights that are basic to the fundamental fairness of any criminal justice system, such as the right to be presumed innocent. But Americans would be surprised and dismayed at the deliberate omission of certain rights that have been considered "fundamental to a valid truth-seeking process" and the due process of law since long before our nation was founded. Chief among these is the bar on the use of all coerced statements extracted from a defendant as evidence against him at his own trial. That is precisely what the military commission rules contemplate will occur at these trials.

And contrary to Colonel Morris's suggestion, torture is anything but a "red herring" in these proceedings. Indeed, a military judge recently held that some of the chief evidence that the government intended to use against one of the commission defendants, Mohammed Jawad, was in fact obtained by torture. Moreover, while the rules prohibit the use of evidence obtained by torture, they explicitly permit the use of evidence obtained by "cruel, inhumane or degrading" means under some circumstances. In other words, if the military judge in Mr. Jawad's case had found that he had not been tortured, but had merely been subjected to "cruel, inhumane or degrading treatment," the evidence might well have been admitted. That would be blatantly unconstitutional in any other American criminal proceeding. It is not the kind of criminal justice system that Americans have come to expect from their government.

Nor do Americans expect that the government can build its case, and ultimately sentence a person to prison or even to death, based on hearsay. Yet, again, that is a possibility expressly contemplated and endorsed by the military commission rules. Under the rules, and unlike in any other American criminal court, the burden is on the commission defendant to show that hearsay evidence should not be used to convict him, in blatant violation of the constitutional requirement that criminal defendants be allowed to "confront their accusers" - a constitutional right that Justice Scalia has described as a "bedrock procedural guarantee."

It is very difficult to see the purpose of denying commission defendants these rights, if, as Colonel Morris insists, the government is committed to "a valid truth-seeking process" and to "Americans' devotion to due process." The reliability of coerced statements (whether obtained by torture, "cruel, inhumane or degrading treatment" or otherwise) is inherently suspect, as is the reliability of hearsay, and no system of justice founded on such evidence can be said to be dedicated to "truth-seeking." What is needed is a system that respects these basic American constitutional values and all other requirements of the rule of law. Only then can we begin to have confidence that truth and justice are the genuine aims of the system.

Colonel Pete Masciola is Chief Defense Counsel at the Office of Military Commissions.

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