JURIST Guest Columnist Darryll Jones, former criminal trial attorney for the US Army Judge Advocate General and now a law professor at the University of Pittsburgh School of Law, says that the recent ruling of the US DC Circuit Court of Appeals on the validity of military commissions is not so much a victory or defeat for the friends or foes of military terror trials as it is a warning to simply get on with the necessary process of adjudication…

The long-awaited decision in Hamdan v. Rumsfeld constitutes neither a victory for the government nor a defeat for detainees. It is merely another preliminary and ultimately meaningless skirmish — at least from the standpoint of the objective observers — in a battle the genesis of which is fast fading. It's like one of the incessant shoot-outs between the Hatfields and McCoys. The two sides seemed to have lost sight of the original reason for the fight and instead have grown so accustomed to their skirmishes that they would rather keep fighting than admit to any common understanding that might eventually settle the dispute one way or another. All the while they seem oblivious to the fact that their separate, mutually exclusive interests are being equally sacrificed.

The government wants a clean, neat and decidedly non-transparent way to handle the people it refers to as "unlawful combatants." "Trust us," it says. The civil libertarians, on the other hand, want to prove that the Bush administration’s bloodlust means that it is willing to sacrifice the very principles that make the terrorist want to kill us all. They want a transparent but very messy procedure. "Don’t trust those who say they want to protect you!" they say.

The D.C. Circuit’s opinion demurs on both arguments, thankfully preferring a pragmatic approach devoid of left- or right-leaning political philosophy. Reasonable people might disagree about the Court’s essential holding that the government may try detainees under the present military commission rules. But it is hard to deny the pragmatic, “best we can do” attitude underlying the Court’s opinion. The Court never really tells us whether the government or the civil libertarians are right. It definitively states only two things: there is a war going on and suspected war criminals should have their day in court.

Common ground, that. Neither side can disagree with those two conclusions. After the detainees have their day in court, the federal civilian judiciary can exercise its constitutional authority in review. The sides disagree on the civilian judiciary’s role but that disagreement need not delay the detainees day in court. The Court’s simple pragmatism will go a long way towards fair process even if the process is not entirely fair right now. A pragmatic approach may not yet be the most perfect solution, but it is far superior to the present state of affairs where essentially nothing is happening. How fair can that be?

Guantanamo, as everybody knows, has become nothing less than a shameful embarrassment not because the world audience appreciates the jurisprudential niceties separating the two sides, but because of the incessant delays. As long as the Gitmo courtroom remains empty and silent, it serves only as precedent, legitimate or illegitimate, for future governments who want to throw people away under the banner of national security. Imagine even a guilty U.S. citizen being branded an “unlawful combatant” and then confined by a foreign government for four years without any process or hint thereof. Indeed, some 600 detainees sit around, probably even hoping for their turn at interrogation because by this time interrogation has to be preferable to anything else. Interrogation, at least, provides the opportunity for mental jousting. The best way to prove that a superior unchecked foe is unjust, incidentally, is by total submission to that foe’s power. Unchecked, unlimited power invariably proves its own injustice.

The detainees’ submission may be involuntary, of course, but it has the same effect. The government’s heretofore unchecked power to hold 600 human beings incommunicado, all the while arguing about its obligation to submit its decisions to the test of judicial inquiry, has proven the injustice. The government should eschew the unchecked power implicit in its legal arguments. Civil libertarians, on the other hand, have no qualms about assisting the government in shooting itself in the foot. While detainees sit, assigned defense counsel and their amicus allies wax indignantly about the government’s failure to grant complete privacy to defense lawyers so accustomed to such luxuries in cases ranging from shoplifting to serial murder. They can’t seem to fathom that cases involving genocide and indiscriminate suicidal killing of “infidels” (i.e., any man or woman who happens to believe differently, their children and their babies, and anybody else who happens to be standing around) might just require the compromise of luxuries that are so commonplace in peace that they are somehow viewed as indispensable in war. In fact, the judicial review argument can wait and it would have cost the parties nothing to have indulged a temporary compromise four years ago.

One reason why the detainees have sat around for so long — living witnesses to the cause of jihad — is that the government and the defenders have been arguing about mostly theoretical possibilities. The government has insisted that the detainees are not entitled to the protections of the Third Geneva Convention, even though proving that point would have required only the most minimal of “probable cause” type hearing; one that would only have required a finding that the detainees sought to pose as civilians in their holy war. That’s it. It is a hardly even a theoretical possibility that the Third Geneva Convention would apply given what we know about the nature of terrorist warfare and yet the Government relied on filibuster for so long. The Government could have successfully resolved this point a long time ago. And while any defense counsel could easily and legitimately concede the argument without being subjected to an ineffective assistance claim (if, indeed, that standard even applied in this context), assigned defense counsel have instead decided to press theoretical point on principle, thereby delaying a consideration of each detainees’ substantive defense for the four years it has taken the D.C. Court to tell us to get on with it and know that the federal civilian judiciary will be watching and prepared to perform the oversight role assigned by the Constitution.

The D.C. Court of Appeals said this, basically: “Maybe the detainees are entitled to a finding that the Geneva Convention applies, maybe not. Let’s just allow the military commission, with whatever flaws they may possess, to decide as a preliminary matter whether the Convention applies and then proceed to trial accordingly. Once the commissions render a judgment, we will then have a concrete procedure and outcome to review, and review we will.” That preliminary matter, by the way, should take maybe one day at the most, right? So after four years of detention — not good for either side, actually — we are pretty much back to the point we should have long since passed. The detainees still sit, the world still watches, and the Geneva Convention question has finally been called, though the answer is hardly in doubt even to those who staunchly oppose the government’s policies. Implicit in the D.C. Court’s opinion is an admonition, with which I agree, tha
t we get on with it. Both sides should stop shooting blanks and get on with it already.

Darryll Jones is a professor of law at the University of Pittsburgh School of Law and a former criminal trial attorney for the US Army Judge Advocate General. He has received provisional recognition as Qualified Civilian Defense Counsel, making him eligible to appear before US Military Commissions established to try terror suspects.
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