Colonel Davis’s op-ed piece appeared Friday in the New York Times.
Guantánamo’s Charade of Justice
LAST week, we learned that, only months into the job, the official in charge of the military courts system at Guantánamo Bay was stepping down, after judges ruled he had interfered in proceedings. The appointment of an interim replacement was the sixth change of leadership for the tribunals since 2003.
This is yet another setback for the military commissions, as they tackle two of their highest-profile cases: the joint trial of the chief planner of the 9/11 attacks, Khalid Shaikh Mohammed, and four alleged co-conspirators, and the trial of Abd al-Rahim al-Nashiri, accused in the bombing of the American destroyer Cole.
That’s not all. Besides the revolving door at the convening authority’s office, six military attorneys have served as chief prosecutor for these courts over the same period. (I was the third.)
Think about that for a moment. If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team would almost certainly be a loser.
On Dec. 31, 2001, the venerable Washington lawyer Lloyd N. Cutler wrote an article in The Wall Street Journal titled “Lessons on Tribunals — From 1942.” Mr. Cutler, a young attorney at the Justice Department in the summer of 1942, served on the team that prosecuted the eight German saboteurs whom President Franklin D. Roosevelt ordered tried before a military commission following their capture on American soil.
While Mr. Cutler noted some shortcomings in the way the military commission had been conducted in 1942 and advised the Bush administration to avoid repeating those mistakes at Guantánamo Bay, he was generally optimistic that after a six-decade respite military commissions could be revived and used in a credible manner.
“But success will depend on the quality of the judges, the prosecutors and the defense lawyers, and their ability to show the world that justice is in fact being done,” he concluded. “In a very real sense, it is the American legal system, not just Al Qaeda’s leaders, that would be on trial.”
So how have Guantánamo’s tribunals performed, more than 13 years on?
Just six detainees have been both convicted and sentenced for war crimes in military commissions since President George W. Bush first authorized them in November 2001.
Charges against three were later dismissed, and five who were convicted were eventually transferred from Guantánamo. Thus we have a legal system where it is more advantageous to be found guilty of a war crime than never to be charged at all and remain imprisoned indefinitely.
About 85 percent of the 779 men ever held at Guantánamo are no longer there. Most left during the Bush administration. While the number of transfers has been much smaller under the Obama administration, the pace accelerated in the latter part of 2014.
Of the 122 men detained, nearly half have been cleared for transfer by unanimous votes of military, intelligence, law enforcement and diplomatic officials who determined that the detainees could not be prosecuted, posed no identifiable threat to the United States and did not need to remain in our custody. Nevertheless, 56 men cleared to leave still remain, at a cost of about $3 million a year per detainee.
As unfortunate as this waste of resources and damage to America’s reputation are, the greatest tragedy is the pain inflicted on the friends and families of the 9/11 and Cole victims. For them, justice has been endlessly delayed.
Rather than showing “the world that justice is in fact being done,” as Mr. Cutler wrote, Guantánamo has come to symbolize torture and indefinite detention, and its court system has been discredited as an opaque and dysfunctional process. The latest reshuffle of personnel will not alter this impression.
In November 2013, Attorney General Eric H. Holder Jr. admitted that, had the administration not given up on its plan to try the 9/11 case in federal court, Mr. Mohammed and his colleagues “would be on death row as we speak.” Mr. Holder blamed partisan politics for the revival of the military commissions.
In the 16 months since, those observations have received further validation. While Osama bin Laden’s son-in-law Sulaiman Abu Ghaith and the radical cleric Mostafa Kamel Mostafa, also known as Abu Hamza al-Masri, were convicted and sentenced to life in prison by federal courts, the tribunals at Guantánamo stumbled from one mishap to another.
We need to set politics aside and end this litany of failure. We have competent and credible federal courts that can provide justice — and finally a measure of closure for the thousands of our fellow citizens who have had to wait far too long.
Moe Davis often appears on cable news as an expert speaker on Gitmo and other topics involving military justice. Moe currently teaches law at Howard University. The New York Times? Pretty impressive, Moe.
Moe — Those 56 men cleared to leave but still in detention — why? No one willing to take them?
Good question, Wolve.
They’re mostly Yemeni and if you’ve been watching what’s going on there you know why there’s no desire to send them home. Other countries we ask to help us out and take a few are prone to say, “Guantanamo is a problem the U.S. created and now you want us to help solve your problem. How many has the U.S. welcomed?” @Wolve
Nice job with the opinion piece, Moe.
Mo: if the Yemeni detainees were released to Yemen, whose side would they be on in that war?
Apparently there was not enough evidence to try the five detainees exchanged for Bergdahl, but one of them has already reached out to re-engage in military activities. With the withdrawal in Afghanistan on hold, there is justification to detain POWs.
http://www.cnn.com/2015/01/29/politics/bergdahl-swap-prisoner-militant-activity/index.html
but there really isn’t justification to hold POWs indefinitely. These people haven’t even been charged, have they?
I have a real problem with Americans just capturing people and never turning them loose.
We didnt do that in the Civil War or WWII, our most brutal wars in my opinion.
This begs the question, why wouldn’t they hate us. They have been held in captivity for over a decade. I would want to fight more also if people were still fighting.
Well, *I* probably wouldn’t. I would probably want to just watch TV and never think about war again…but perhaps he was more ambitious.
@Moon-howler
War’s not over.
And they aren’t really POWs. They have some other designation. I don’t remember what but not POW.
@Moon-howler
That is exactly my point. The Obama Administration (and Bush Administration to some extent) have treated these cases as criminal prosecutions. This is a war. The detainees should be held as POWs who are ALSO prosecuted for crimes. The purpose of holding POWs is to prevent them from returning to the fight, not to punish them. So they should be held until the war is over, unless an equitable large-scale prisoner exchange can be arranged.
The problem with considering them prisoners of war is that this “war” will likely have no end, at least not in our lifetimes. I won’t even go into the concept of an actual war on a criminal technique such as terrorism and how ill defined and unwinnable that is.
Many have been deemed releaseable, but obviously COULD still return to the fight. The question is how long do we continue to compromise our principles for the possibility that they will.
@middleman
It is not a compromise of principles to hold POWs. The practice is fully supported by the Geneva Conventions and the like. At least we are holding and feeding them, rather than torturing and killing them like the the other side does. Terrorism is simply a technique used by the weaker side; the war itself is against Islamists. If the terrorism stops, the war comes to an end, and the long confinement of the POWs can come to an end.
Justice O’Connor, in the Hamdi decision 11 years ago, said:
“The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.”
Active combat operations in Afghanistan came to an official end on December 31st.
Was 31 December negated by the White House decision to halt the withdrawal of US troops?
That said, if most of the 56 detainees are Yemeni, were they al-Qaeda suspects at the time of capture or Taliban? If al-Qaeda, that appears to me to be a harder question with regard to release. I wouldn’t trust any of them to honor “parole” even if someone would take them. Angry and al-Qaeda? Right back to the “cause” IMO. Or maybe ISIL.
Moe, do you recall where and why these Yemeni detainees were taken?
@Moon-howler
They are irregular combatants and are considered prisoners of war, to the best of my knowledge.
It is a compromise of principles to hold POW’s forever in a “war” that will likely never “end.” Especially when the majority have been cleared for release.
What in the world is an “Islamist” anyway, Kelly? When did we declare war on them?
I have no problem with releasing those who played no role in killing Americans. But for those who were involved, I have absolutely no issue with holding them while Americans are actively engaged in combat operations.
Despite the official end of active combat operations, American forces remaining in Afghanistan will have two missions: training Afghan forces and conducting counterterrorism operations. Both missions will place Americans in combat situations. Gen Breedlove, EUCOM commander, stated that American combat casualties should be expected in the coming year. So there really is no question that the U.S. is well justified to hold POWs.
Islamists are the groups that wage war in the name of Islam on non-Muslims and different sects to establish a caliphate. These groups include ISIS, Al Qaeda, the Taliban, and the Muslim Brotherhood.
So in your mind, Kelly, we’re only at “war” with terrorists if they commit terror in the name of Islam? And again, when did the U.S. government declare war on “Islamists?”
If the war is against “Islamists” as you say, it is immaterial wether or not what is happening in Afganistan is defined as combat. The “war” would continue until the “Islamists” are defeated- which won’t be anytime soon.
So we’re right back to my earlier post: It is a compromise of principles to hold POW’s forever in a “war” that will likely never “end.” Especially when the majority have been cleared for release.
@Kelly_3406
At least we are holding and feeding them, rather than torturing and killing them like the the other side does.
it all depends on your definition of what torture is.
@middleman
Let me present you with a hypothetical. Suppose that a peace treaty is signed between the Afghan government, the US and the Taliban. At that point, all Taliban POWs held by the US should be freed. But that would not mean that iSIS prisoners (if we have any) would automatically be released since we would presumably be fighting them in a different theater.
As long as Americans deployed to Afghanistan face combat, we should unapologetically hold any captured Taliban as POWs. The same goes for other groups in the different theaters of the Long War.
Guantánamo’s Charade of Justice… hmmm…. question, how many enemy prisoners of war or terrorists have we taken off of the battlefield and detained since Obama has been elected? Not very many right?
Because we just drone them instead, much easier and no adverse political effects. Sure we don’t gain any intelligence at all but who cares, right? Is that the Administrations charade of justice? Just kill’em and everyone around them, is that better than Guantanamo?
Would you rather Americans be killed? I would not.
So Kelly- all Taliban would be released even if deemed a threat? Just because a peace treaty is signed doesn’t remove the individual threat. And do you really think the Taliban will ever sign a peace treaty? Or that it would be worth a damn?
It seems to make a lot more sense to release those not deemed a threat no matter where they came from.