JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that Salim Hamdan's recent military commission trial - in which he was called as an expert witness for the defense - should remind us that true legitimacy for the US military commissions has never been and will never be defined by the role of the military in the commission process, but instead by the process that civilian leaders create for that role...
he trial of Salim Hamdan reminded us once again of the struggle to establish a legitimate judicial process for trying alleged war criminals. Many commentators were surprised at the seemingly favorable outcome of the trial, citing it as compelling evidence that the government had overplayed its hand by creating the military commissions. Others pointed to the result as evidence that the military commission process is indeed fundamentally fair. While there may be merit for both, these citations to the Hamdan
result, has raised a new question about the military commissions: can the professionalism of participants in the process cure the fundamental defects of the process itself?
My involvement in Hamdan's trial forced me to contemplate this question as never before. Called as an expert witness by the defense, I played a relatively minor role in the proceeding. But as someone who served this nation in uniform for twenty-one years, testifying in the first contested military commission prosecution on behalf of an admitted al Qaeda operative led me to reflect a great deal on how the trial and the military commissions in general reflected on the core values that always motivated my sense of patriotism and love of the military legal profession.
If the outcome of Hamdan's trial is evidence of the credibility of the commission process, it is primarily the result of the professional and ethical conduct of the participants in that process. Nothing about the result has, in my opinion, altered the fundamental defects of a system conceived by the President and endorsed by Congress. But what the trial has done is to raise a very difficult question: can the professionalism of the participants in that process effectively nullify the fundamental defects with the process itself?
To suggest this is not a difficult question is to ignore the realities of military justice writ large. From the outset of the military commission debate, criticism of the process has come from many military legal experts. But even the most vociferous critics among this group have always recognized that the saving grace of this process might very well be the integrity and professionalism of the participants. Hamdan's trial confirmed this. In many respects, the Hamdan trial was a model of legal ethics: a military judge exercising independent judgment and issuing rules based on his understanding of the law; a prosecution determined to apply the law handed them by Congress; and a defense team determined to challenge the government as zealously as possible. Perhaps most significant, however, was the obvious integrity of the military jury. The outcome of the trial speaks for itself and rebuts any assertion that commission juries would simply "rubber stamp" government allegations. Instead, the jury followed the instructions of the military judge and tailored a finding and sentence which they believed was supported by the facts and the law. The result shocked many observers for its leniency.
But does all this prove that the military commission system is fundamentally fair and legally legitimate? To answer "yes" without careful consideration of why the case turned out as it did would be about as overbroad as the Military Commission Act itself. What the outcome really proves is that the Military Commission Act has thrust the participants in this process in the untenable position of attempting to achieve justice while operating within a flawed legal framework. The most visible example of this is the scope of conduct condemned by that law as "war crimes" and Hamdan's conviction for material support to terrorism - conduct that according to most experts falls outside this definition.
The Military Commissions Act clearly indicates that the Commission is vested with jurisdiction over only one category of criminal offenses: war crimes. Nonetheless, the actual criminal prohibitions of the Act extend well beyond that category of offenses, and encompass crimes that have never before been considered within that realm. This was unfortunate for Hamdan, for he was convicted of the purported war crime of material support to terrorism. Was it appropriate for the government to charge him with that offense? It is difficult to argue otherwise when Congress explicitly provided for such charges in the statute. Should the defense have challenged the legitimacy of such a charge? In fact they did so, arguing that it was not within the jurisdiction of the commission because it was not a "war crime." In ruling that the offenses were within the jurisdiction of the commission because they had been defined in the MCA, the military judge exposed the fundamental dilemma of the military commission process: whose role is it to decide that law itself extends beyond the limits of legitimacy?
This did, of course, leave to the members or jurors - the factual determination of whether the conduct occurred within the context of an armed conflict, an element of proof for every offense subject to the jurisdiction of the commission. That question was the focus of my testimony as part of the defense effort to discredit the allegation that conduct that pre-dated the terror attacks of September 11th fell into this category. I offered an opinion based on an article
about to be published in the Temple Law Review
that the best indicator of armed conflict between states and transnational non-state organizations is the nature of the authority granted to the armed forces. When that authority permits targeting based solely on determination of an individual's status, it is an indicator of armed conflict because it is an inherent invocation of the principle of military objective.
The fact that the Military Commissions Act leaves this question to the finder of fact raises serious questions of legitimacy. If, as the Congress indicated in the pre-amble to the Act itself, jurisdiction of the military commissions is limited to war crimes, determining whether conduct occurred in the context of an armed conflict should not be treated as a factual element. Jurisdiction is a quintessential question of law, and there is no logical explanation why such a critical question is left to the finder of fact, to be determined on a case by case basis with potentially disparate outcomes for different defendants.
No level of ethical or professional conduct by the participants in the process can offset such a defect. This, in my opinion, is the true significance of the Hamdan result. Did the defense aggressively challenge the allegation that Hamdan's pre-9/11 conduct occurred in the context of an armed conflict? Yes. Did the military judge permit the defense to present evidence on that question? Yes. Did the jurors receive an instruction that they were required to make this factual determination? Yes. Did the jurors demonstrate a commitment to following the instructions they were given? Yes. None of this altered the fundamental fact that a question essential to the legitimate jurisdiction of a military tribunal was left to the jury.
There is, of course, one other participant in the process: the prosecutor. It is axiomatic that penultimate duty of the prosecutor is to seek justice. Justice Jackson's famous address after assuming the position of Attorney General captured the immense significance of this duty:
Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.
There has been much debate regarding whether the military commission system divests the prosecutor of the broad discretion traditionally associated with that position, and I will leave that question to others. But even assuming arguendo
genuine prosecutorial discretion, the Military Commission Act itself raises a difficult ethical question: how to exercise that discretion when the range of potential offenses leads the prosecutor into uncharted waters? While scholars have engaged in healthy debates on whether an armed conflict between the United States and al Qaeda can exist and if so, when the armed conflict commenced, the Military Commission Act thrust the prosecutor into the difficult position of making this judgment not in theoretical terms but as an essential predicate to criminal prosecution. How do we define when "justice is done" in relation to such a complex decision?
I testified on behalf of Hamdan because I believed the government had overreached when it charged pre-9/11 crimes of al Qaeda operatives as war crimes. Because of the breadth of the Military Commissions Act, I find it difficult to question the propriety of laying such an allegation. But this, in my mind, just confirms that no matter how ethical the efforts of all the participants in the process might be, the conditions set by the Military Commission Act will inevitably lead to illegitimate results.
The Hamdan outcome has been hailed as victory by both sides in the case. The government won their first war crimes conviction in an outcome that bolstered the legitimacy of the use of military courts for such trials. The defense achieved an outcome on both findings and sentence that defied widespread expectations of draconian outcomes for alleged al Qaeda operatives. But if Hamdan proves anything, it is only the credibility of military juries and the professionalism of the lawyers and judges dealt the unenviable task of operating within a flawed system. In the final analysis, Hamdan was convicted of a war crime not because his conduct fell into a well established category of conduct prohibited by international law during armed conflict, but simply because Congress took a crime never before considered a war crime and gave it that title. Thus, what Hamdan really reminds us of is that true legitimacy for the military commissions has never been and will never be defined by the role of the military in the process, but instead by the process that our civilian leaders create for that role. Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.