A Self-Inflicted Wound: A Half-Dozen Years of Turmoil over the Guantanamo Military Commissions

Abstract

President Bush's November 2001 military order authorizing suspected terrorists' trial by military commissions provoked immediate controversy that has continued to the present day. The Administration has failed to provide a compelling rationale for commission use while fueling the dispute by adopting judicial shortcuts unjustified by either historic practice or accepted legal principles. Supplemental governing directives have proven a mixed lot. Some provided enhanced fairness while others authorized greater departure from accepted due process standards. Virtually all seemed based on policy decisions rather than any higher law. Despite this plethora of regulations, proceedings to date seem largely ad-libbed. Eligibility for trial, the right to choice of counsel, and other benefits accorded the accused depend on nationality, mocking the concept of equal protection. The accused have been seriously disadvantaged in terms of resources, availability of witnesses, and access to evidence, while most of the charges levied are problematic as violations of the law of war. Rules implementing the Military Commissions Act of 2006, itself a reaction to the Supreme Court's Hamdan v. Rumsfeld decision, are a considerable improvement over the tribunals' initial conceptualization. But remaining critical defects, including the likelihood of convictions based on coerced testimony, will preclude trials from meriting approbation as "full and fair." Any convictions will thus be irreparably tainted, and many of the same problems would now follow a shift to either courts-martial or proposed national security courts. If the goal is to incapacitate identified enemies from carrying out further violence against U.S. interests, then a straightforward preventive detention regime fully compliant with the customary law of war would be a much sounder approach. For those defendants it is desired to stigmatize with a criminal conviction, justifying actual penal incarceration or even potentially execution, trials in regular federal courts are the best option.

Keywords: military commissions, Guantanamo, war on terror