David Frakt: Let the military commissions die
[David Frakt was a lawyer for Guantanamo detainees.]
As President Obama considers reviving the military commissions, and Congress considers various revisions to the Military Commissions Act, they should do so with a clear understanding of why the military commissions of the Bush administration were created, why they were such a catastrophic failure, and whether there would be any useful purpose to reviving them.
The military commissions clearly failed to achieve their intended purpose. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released.
And then there was my client, Ali Hamza al Bahlul, a low-level al-Qaida media specialist whom I began representing in late April 2008 as appointed military defense counsel. Six members of Hicks' jury from 2007, including the foreman, were recycled for his trial in 2008. After being denied his statutory right of self-representation, Mr. al Bahlul refused to authorize me, his appointed military counsel, to put on any defense. Not surprisingly, he was convicted of all charges and received the maximum life sentence.
Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.
One of the first indications that the rule of law was to be abandoned was in President Bush's Military Order of Nov. 13, 2001: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." In this document, President Bush found: "it is not practicable to apply in military commissions ... the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." In other words, what we consider essential for a fair trial for us would not be required for them.
How did President Bush know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? He didn't, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.
Another major step in the abandonment of the rule of law came on Feb. 7, 2002, when President Bush announced that the Geneva Conventions would not apply to "unlawful combatants" detained in the war on terror. The term itself was new and misleading. The president held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely.
The U.S. has recognized the Geneva Conventions as binding law since ratifying the treaty in 1955. With a stroke of the pen, the president wiped out the principal source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was preferred rather than required created confusion about what was permissible and cleared the way for the use of patently illegal and highly coercive "enhanced interrogation techniques."...
Read entire article at Salon
As President Obama considers reviving the military commissions, and Congress considers various revisions to the Military Commissions Act, they should do so with a clear understanding of why the military commissions of the Bush administration were created, why they were such a catastrophic failure, and whether there would be any useful purpose to reviving them.
The military commissions clearly failed to achieve their intended purpose. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released.
And then there was my client, Ali Hamza al Bahlul, a low-level al-Qaida media specialist whom I began representing in late April 2008 as appointed military defense counsel. Six members of Hicks' jury from 2007, including the foreman, were recycled for his trial in 2008. After being denied his statutory right of self-representation, Mr. al Bahlul refused to authorize me, his appointed military counsel, to put on any defense. Not surprisingly, he was convicted of all charges and received the maximum life sentence.
Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.
One of the first indications that the rule of law was to be abandoned was in President Bush's Military Order of Nov. 13, 2001: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." In this document, President Bush found: "it is not practicable to apply in military commissions ... the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." In other words, what we consider essential for a fair trial for us would not be required for them.
How did President Bush know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? He didn't, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.
Another major step in the abandonment of the rule of law came on Feb. 7, 2002, when President Bush announced that the Geneva Conventions would not apply to "unlawful combatants" detained in the war on terror. The term itself was new and misleading. The president held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely.
The U.S. has recognized the Geneva Conventions as binding law since ratifying the treaty in 1955. With a stroke of the pen, the president wiped out the principal source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was preferred rather than required created confusion about what was permissible and cleared the way for the use of patently illegal and highly coercive "enhanced interrogation techniques."...