Falling Short: Justice in the New Military Commissions

JURIST Special Guest Columnist Andrea Prasow of Human Rights Watch says that judging from what she saw at Guantanamo last week, the new system of US military commissions established under the Military Commissions Act of 2009 fails to meet "our highest standards as a nation," despite a recent pledge by US Attorney General Eric Holder...



Last month Attorney General Eric Holder announced that some Guantanamo detainees will be tried in federal court while others will face military commissions. Holder assured the American public that military commissions will be "consistent with our highest standards as a nation." I am afraid he will be disappointed.

I was in Guantanamo last week to observe the military commissions — the ones
blessed by both Congress and President Obama — which were designed to provide swift justice to terrorism suspects. The hearing that took place under the new system of military commissions was a far cry from what I believe to be the highest standards of our nation.

The defendant appearing before the military commission was Ibrahim Ahmed Mahmoud al Qosi, a middle-aged Sudanese man who allegedly worked as Osama bin Laden's accountant in Khartoum, and later as his cook in Afghanistan. The prosecution alleges that he also served as bin Laden's bodyguard and provided logistical support to Al Qaeda. But despite having had more than five years since charges were filed to prepare for the trial, the prosecution showed up this week with a new theory of the case and a new set of charges.

The military commissions were originally created by presidential order in 2001. Al Qosi was first charged before the military commissions in 2004, but those commissions were struck down by the Supreme Court in 2006. The Court ruled that the president lacked congressional authorization to establish the commissions and that they violated basic fair trial standards required by the Geneva Conventions.

Still determined to try terrorism suspects by military commission rather than existing courts — which would have banned evidence obtained through torture and other abuse — the Bush administration went to Congress to get the necessary authorization. Congress quickly passed the Military Commissions Act of 2006, reestablishing the military commissions with slightly improved rules. So Al Qosi was recharged under the new military commissions.

Shortly after taking office, President Obama suspended the military commissions for 180 days. Many critics of the commissions believed the suspension was preparatory to ending the fundamentally flawed commissions. But in May, the president announced that he planned to revive the military commissions with improved rules and asked Congress to draft legislation accordingly. The result is the Military Commissions Act of 2009.

So last week, Al Qosi was in the hilltop courtroom overlooking Guantanamo Bay again, facing charges under the third iteration of military commissions.

At the outset of the hearing, Judge Nancy Paul announced that she would set a trial schedule, since pre-trial motions had been under way for years now. But the prosecution said it wanted to amend the charge sheet. One proposed amendment was relatively minor and necessary for the case to proceed. But the others demonstrated the marked difference between a military commission and established court proceedings, as the prosecution sought to expand the charges against Al Qosi in a way that would never be permitted in a civilian court or even a court-martial.

Under the old Military Commissions Act of 2006, a military commission had jurisdiction over "alien unlawful enemy combatants." However, the Military Commissions Act of 2009 provides jurisdiction only over "alien unprivileged enemy belligerents." While this small change in language may not seem significant, a military commission can only try people who fit within the specific terms of its jurisdiction. Therefore, if a defendant is not covered by these terms, his case must be dismissed.

Ordinarily, any minor change to the charges doesn't require the government to withdraw the charges and refile them (as they plan to do for other detainees), so the prosecution wanted the judge to approve the change without restarting the proceedings. Al Qosi would be charged under one version of a charge sheet today, and a different one tomorrow.

This sort of change is relatively straightforward, and indeed seems to be exactly what Congress intended to happen. But as has frequently been the case at Guantanamo, prosecutors overreached. In addition to changing the language relating to jurisdiction, the prosecution requested permission to add new overt acts to the charge sheet, and to accuse Al Qosi of conduct that took place four years before the current accusations.

The prosecution provided the defense with a draft of its new charge sheet just 20 minutes before the hearing started. Defense counsel understandably appeared taken aback as they perused the proposed changes and discovered that not only did the dates of the alleged crimes go back to 1992 but the prosecution sought for the first time to charge Al Qosi with conduct that occurred in Somalia, Ethiopia and Chechnya. Only the lawyers and the judge were allowed to see the proposed charge sheet, but it seems the prosecution wants to charge Al Qosi with participation in al Qaeda's world-wide criminal acts simply because they believe he was part of al Qaeda in the early 1990s.

Ultimately, the judge ruled that while the prosecution could make the simple substitution of the words "alien unprivileged enemy belligerent," it could not "fundamentally alter the charges against the Accused" by expanding the scope and timeframe of the charges. The prosecution is left to proceed with the current charge sheet, or it may choose to withdraw the charges entirely and refile them. If it does so, the proceedings start anew.

Not only are the charges in flux but the procedural rules that are supposed to govern the military commissions don't even exist yet. According to the legislation Congress passed, the Secretary of Defense has 90 days to issue new regulations, which could result in significant changes to trial procedures relating to the types of evidence that are admissible. Those new regulations are not drafted yet, but Al Qosi's case is going forward anyway. Judge Paul believes she is bound to apply the old rules until she has new ones. But instead of delaying the case for 90 days until there are new rules, the judge has again made Al Qosi the subject of proceedings that may ultimately be changed out from under him.

Meanwhile, the prosecution appears to have a new theory of Al Qosi's case — indeed of all the Guantanamo cases. The new military commissions permit jurisdiction over an individual who was "part of al Qaeda" at the time the alleged offense was committed. Because Al Qosi is charged with conspiracy — a wide-ranging charge that is not a traditional violation of the laws of war — the prosecution wants to hold Al Qosi responsible for any crime committed by al Qaeda. It is for this reason that the prosecution wants to back-date Al Qosi's charge sheet to 1992. Their theory appears to be that if they can show Al Qosi was "part of al Qaeda" in 1992, and Osama bin Laden issued fatwas against the United States in 1992, thereby commencing "hostilities" against the United States, Al Qosi can be held criminally responsible for everything al Qaeda did over the nine-year period before he was captured. While previously the prosecution was required to prove that the defendant's conduct occurred during "armed conflict," the new law substitutes the word "hostilities," which prosecutors seem to believe allows them to reach even more conduct.

And so, instead of the trial date he was supposed to receive last week, Al Qosi now has a new hearing set for January at which time the government will again seek to establish that the military commissions have jurisdiction over him. That is, unless the government withdraws the charges so that they can refile them with new allegations that fit their revised theory of the case.

With no word from Obama or the Department of Defense on where the military commissions will take place in the future, and whether Guantanamo will ever really be closed, it is likely Al Qosi's trial will begin at Guantanamo shortly after the president misses his deadline to close the prison.

Eight years after he was apprehended and five years since being charged, Al Qosi may yet have his day in court — a court with markedly different rules and procedures than available to the defendants accused of actually planning the 9/11 attacks.


Andrea J. Prasow, senior counterterrorism counsel at Human Rights Watch, was formerly a defense lawyer for the Office of the Military Commissions
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