JURIST Guest Columnist David Frakt of the University of Pittsburgh School of Law says that the recent reversal of Salim Hamdan’s conviction presents an opportunity to rethink the wisdom of using military commissions to try individuals accused of acts of terrorism…

On October 16, 2012, the US Court of the Appeals for the District of Columbia Circuit reversed the conviction by military commission of Salim Hamdan, striking a devastating blow to the already weak credibility of the US military commissions. Hamdan’s trial, which took place in August 2008, remains the only fully litigated military commission to be completed at Guantanamo Bay, eleven years after US President George Bush first announced that detainees would be tried in military tribunals. His trial, in which he was acquitted of the most serious charges and received an extraordinarily light sentence of 66 months (with credit for 61 months already served) was already widely seen as a stinging defeat for the government. Now, his lawyers have earned an even more sweeping victory. This is the second time that appeals by Hamdan to the federal courts have raised fundamental questions about the value and validity of the entire military commission process. In 2006, in Hamdan v. Rumsfeld, the Supreme Court invalidated Bush’s order under which the Department of Defense (DOD) first attempted to prosecute Hamdan.

The opinion by the DC Circuit found that the crime of which Hamdan was convicted — material support to terrorism — was not a recognized war crime at the time that the Military Commissions Act of 2006 (MCA) was enacted (something which I, as well as Jeh Charles Johnson, general counsel for the Department of Defense, and Assistant Attorney General David Kris, predicted [PDF] in the summer of 2009) and could not be applied retroactively to conduct which occurred between 1996 and 2001. This decision not only has overturned the result of the sole contested military commission conviction, but calls into question the validity of all of the other guilty pleas and verdicts obtained thus far in the military commissions.

The first detainee to plead guilty in a military commission — in March 2007 — was Australian David Hicks. He pled to one charge of material support to terrorism for conduct in 2001 and earlier. He has already indicated that he plans to appeal his conviction based on this ruling. Since then, there have been four other guilty pleas: Omar Khadr, Ibrahim al Qosi, Noor Uthman Mohammed and Majid Khan. All four of these men pled guilty to material support to terrorism as part of their plea agreements. In the only other military commission to go to trial, the defendant, Ali Hamza Ahmad Suliman al Bahlul, was convicted of material support to terrorism and other offenses including conspiracy. (Al Bahlul, who was my client, directed me not to put on any defense because he refused to accept the legitimacy of the proceedings.) Al Bahlul’s conviction is currently on appeal to the DC Circuit. If the court follows the same analysis as they did in Hamdan’s case with respect to material support, there is a strong possibility that they will also reverse his conviction for conspiracy. Most experts on the law of war, and at least some members of the Supreme Court, have concluded that conspiracy is not an internationally recognized war crime and, thus, any convictions for that offense for conduct prior to the enactment of the MCA are also likely to be reversed (see part V of Hamdan v. Rumsfeld). Thus, all six of the convictions obtained at Guantanamo are now in serious jeopardy.

What the DC Circuit has done is to seriously question the validity of the oft-repeated claim that the terrorists at Guantanamo are not ordinary criminals, but war criminals. Despite congressional efforts to convert those who plotted and supported terrorist acts into war criminals, they remain ordinary criminals whose crimes — regardless of how reprehensible — should have been prosecuted in the civilian criminal justice system. The fact that their terrorist acts were motivated by political or religious ideology and that some of those acts resulted in mass casualties does not make these acts war crimes. The list of war crimes is well-defined by the international law of war, which applies only during an armed conflict. In other words, war crimes can only occur during, and as part of, a war. In recognition of this fact, the Manual for Military Commissions [PDF] makes it an element of each offense in the military commissions that the alleged misconduct took place in the context of an armed conflict.

By finding that material support to terrorism was not a recognized war crime prior to 2006, the DC Circuit was able to avoid addressing the critical question of whether the US was in a state of armed conflict with al Qaeda at the time of Hamdan’s involvement with the organization from 1996 to 2001 (although the opinion notes that Congress authorized the president to wage war against al Qaeda only after 9/11). Having served on active duty from 1995 to 2005, I can say with great certainty that the US was not at war prior to 9/11 in any common-sense understanding of the term. Yet somehow, the prosecutors in Hamdan’s case managed to convince the jury, a group of experienced military officers who were all on active duty from 1996 to 2001, that the US was engaged in an ongoing armed conflict during that period. It would have been helpful for future cases if the DC Circuit had critically examined this assertion. This is likely to be a central issue in the ongoing case against Abd al Rahim al Nashiri, the alleged mastermind of the USS Cole bombing. While the 2000 attack against the navy destroyer USS Cole by suicide bombers posing as fisherman would clearly violate the law of war in an ongoing armed conflict, this tragedy was widely perceived at the time to be a peacetime terrorist attack and was described as such by US President Bill Clinton.

It is unclear at this point what impact the court’s decision might have, if any, on the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. But the court’s ruling raises serious questions about the wisdom of using a novel, untested legal regime for what is arguably the most important criminal trial in US history. While there is some question as to whether Salim Hamdan could have been prosecuted in federal court for his involvement with al Qaeda, there is no question that the 9/11 defendants could have been. Indeed, US Attorney General Eric Holder determined to do just that and the alleged co-conspirators were actually indicted in the US District Court for the Southern District of New York. Exaggerated security concerns and political pressure by politicians of both parties eager to demonstrate their toughness on terrorists caused the administration to abandon the federal trial and revert to the “reformed” military commissions. While the Obama administration is unlikely to change course again on the eve of the presidential election, whoever is elected should reexamine whether military commissions are the best forum for terrorism prosecutions, as opposed to genuine war crimes. As the hearings at Guantanamo in the 9/11 case have demonstrated, there are still a myriad of basic procedural issues that need to be resolved before reaching the substance of the criminal cases. The latest prediction is that the 9/11 trial will not be completed for another four years, an unacceptably long time frame for a criminal process that is already a decade overdue. It is not too late to change course and send the 9/11 trial back to federal court where it belongs. The military commissions experiment has been an abject failure and an embarrassment. It is time to cut our losses and move on.

David Frakt is a Visiting Professor at the University of Pittsburgh School of Law and a Lieutenant Colonel in the US Air Force Reserve JAG Corps. He previously represented Guantanamo detainees before the US military commissions and in a habeas corpus proceeding.

Suggested citation: David Frakt, Military Commissions: A Failed Experiment, JURIST – Forum, Oct. 23, 2012, http://jurist.org/forum/2012/10/david-frakt-hamdan-commissions.php.