Try, Try and Try Again: the Military Commissions that Couldn’t

By Devon Chaffee, Advocacy Counsel, Human Rights First
Cross-posted from Huffington Post

Yesterday military judge Lt. Col. Nancy Paul considered pre-trial motions in the case of Ibrahim Ahmed Mahmoud al Qosi as the U.S. government takes a third stab at reconstructing the military commissions at Guantanamo Bay. Judge Paul pushed forward in the absence of any clearly applicable rules or judicial precedent and observers caught a glimpse of the myriad problems that plague commissions as they continue to limp along under the new commissions law enacted in October.

Upon entering the courtroom, al Qosi’s face seemed to convey a sense of ‘here we go again’ as he raised his eyebrows far above his goggle-like safety glasses. At 7 a.m. he was brought to the court house only to spend over two hours waiting in shackles. Al Qosi has been detained at GTMO for over seven years, as long as any other detainee on the base. The rules for military commissions have been revamped three times since he was originally charged in February 2004.

The proceedings began with the lead prosecutor, Commander Dirk Padgett stating the obvious for the record–that after over 10 months of review, the Obama administration has decided to prosecute al Qosi by military commission. Two weeks ago the Attorney General announced that while the five alleged conspirators in the 9/11 attacks would be tried in federal civilian courts in New York, the cases of five other Guantanamo detainees, including al Qosi, would remain in military commissions.

Back in Washington members of Congress on both sides of the aisle have voiced frustration at the administration’s failure to provide a clear answer to a seemingly straight forward question: exactly how is the administration deciding which cases go to military commissions and which are pursued in regular civilian courts? Why create a new system and periodically fly it down to GTMO to try defendants like al Qosi for crimes that US civilian courts have successfully handled for decades?

In responding to these questions the administration continues to refer to a laundry list of factors, giving the world the impression that military commissions are the U.S. government’s fallback for when there is insufficient admissible evidence to bring a case in civilian courts.

The ever evolving story of the case

After reiterating the government’s decision to prosecute al Qosi by military commission, Commander Padgett moved to amend al Qosi’s charge sheet in light of changes in the Military Commissions Act of 2009. Under the new law the defendant no longer has to have had any connection to hostilities against the U.S. to fall within the jurisdiction of the commissions. Given this statutory change, the government hopes to add enumerated acts that al Qosi allegedly committed as early as 1992 in Saudi Arabia, Ethiopia, and Chechnya. This would, according to defense counsel, fundamentally alter the government’s story of the case.

The result: Five years after the government initially filed charges against al Qosi, the defense, in the words of Judge Paul, still “doesn’t even know what the charges are going to look like.” So much for swift justice.

What is clear is that even if the commissions convict al Qosi of both charges brought against him, at least one charge could very well be thrown out on appeal. In July, Assistant Attorney General David Kris testified before the Senate that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

Congress failed to heed Kris’ recommendation, and the 2009 Act, as well as the material support charge against al Qosi, continue to fly in the face of traditional understandings of law of war violations.

Eventually the judge postponed further discussion of proposed charge sheet amendments, and proceeded to listen to oral arguments in four defense motions seeking to dismiss al Qosi’s case. The defense argued that the case should be dismissed due to: 1) lack of jurisdiction, 2) absence of an armed conflict, 3) constitutional violation of the equal protection clause; and 4) because the government failed to give al Qosi the status determination process required by the third Geneva Convention.

As defense counsel Commander Suzanne Lachelier, Major Todd Pierce and Lawrence Martin argued in favor of these four motions they painted a vivid picture of military commissions as a second class system of justice with abridged procedures for aliens “designed to render punishment that is all but inevitable.”

Lachelier asserted that the very purpose of the Geneva Conventions’ requirement that all trials of prisoners be before a “regularly constituted court” was to prevent the creation of separate courts for aliens that provided fewer protections. In contrast to the commissions, Lachelier described a U.S. civilian court system that has capably tried aliens for crimes similar to those alleged against al Qosi.

One, two, three strikes…

The day’s proceedings brought to light far more questions than they resolved, questions likely to multiply as the number of cases before the commissions increases. As she adjourned the commission for the evening, Judge Paul had yet to rule on any of the motions argued and al Qosi’s case seemed hardly any closer to conclusion.

Early that day the prosecutor observed that with the new Military Commissions Act the commissions “are breaking new ground.” But as I returned to my tent in “Camp Justice” the wear and tear on the built-to-be-temporary facilities, the showers and bathrooms already rusting, served as a stark reminder of just how long this process has already dragged on.

Tuesday night in his speech at West Point on U.S. strategy in Afghanistan, the President touted his commitment to close Guantanamo Bay as key to restoring U.S. moral authority in the world. And with 30 transfers of detainees from Guantanamo announced over the past 317 days, the administration is making measurable progress toward closure.

But one has to consider how, in the long term, the decision to continue to pursue cases in military commissions will impact efforts to do substantial justice for both victims and perpetrators and to restore the reputation of the United States as a country that abides by the rule of law. After eight years of unsuccessful tinkering, the commissions, founded on a toxic premise that vilified aliens can safely be subjected to bargain-basement justice, continue to prove the adage: “garbage in, garbage out.”


Published on December 3, 2009


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