Eugene R. Fidell

President, National Institute of Military Justice

Florence Rogatz Lecturer in Law and

Senior Research Scholar in Law

Yale Law School

American Constitution Society 2010 National Convention

Panel on Detainees and Justice

Military Commissions versus Trials within the Federal Court System

Washington, D.C., June 19, 2010

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In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department’s website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.


I would like to offer a different take—in part at the 50,000-foot level, but in part a worm’s-eye view.



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At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice—a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.

Before I get to those factors, it’s important to focus on who is “the public” for the purpose of this inquiry. Is it only the American electorate, as Mr. Kris suggested (“the American people need to understand, and have confidence in, all of the tools in the toolbox”)? Or does it include people in other democracies, whether or not they have chosen to ally with us in the struggle with al Qaeda? Or does it extend to people who are either quite neutral, or worse yet, favorably disposed to al Qaeda? Let’s assume we are talking about a population that at least shares our core values about the rule of law.


So what affects public confidence in the administration of justice?



· Outcomes that are objectively accurate are a good starting place. That only persons who are guilty are found guilty. And of course that the guilty are actually convicted.

· That sentences are within reason.

· That proceedings are conducted with reasonable dispatch.


A system that failed any of these three tests would hardly earn public confidence, however you define the public.


Taking only these three factors into account, how do the military commissions stack up?


Given the handful of cases to date, it does seem that no innocent persons have been convicted, and—since there have been no acquittals–it is obvious, conversely, that no guilty person has been acquitted.


Sentencing presents a tougher question. Certainly the few sentences that have been handed down have not been draconian. Indeed, some might argue that if anything they have been too lenient, although it is hard to carry the day on that point given the protracted periods of pretrial confinement the accused have experienced. The government tried without success to have the commission reconsider Salim Hamdan’s receipt of credit for time served.


Reasonable dispatch is an even harder case to make. Admittedly, the impediments to conducting trials by military commission have been daunting. Because the Bush Administration elected to proceed as it did, without legislation other than the Authorization for Use of Military Force (rather than amending the military commission aspects of the Uniform Code of Military Justice), litigation was certain. The novelty and nature of the issues made Supreme Court review highly likely, with the delay that entails given the Court’s reluctance to convene in extraordinary sessions. In addition to its fundamental error of proceeding by Military Order in November 2001, the Bush Administration also reduced its own chances of success in the inevitable litigation by failing to make impracticability findings that any reasonable observer would accept as justifying a departure from civilian procedure or even court-martial procedure, as the Court noted in Hamdan v. Rumsfeld.


And yes, when Congress got into the act by passing the Military Commissions Act of 2006, it ensured further delay since the legislation proved defective, as the Court held in Boumediene v. Rumsfeld, requiring yet additional legislation in 2009.



But set all of that aside. Have the commissions proceeded—allowing for these delays—with what any reasonable observer can call reasonable dispatch—or can we expect that going forward? I think not. Why is that? One explanation is the sheer inconvenience of the place of trial (never mind the expense, as General Charles C. Krulak, retired Commandant of the United States Marine Corps observed a week ago in an extraordinary letter to the editor of the Washington Post). General Krulak commented: “The real absurdity of the Guantanamo boondoggle is that we never needed to spend a dime to create it.” He also wrote: “the greatest cost of Guantanamo has been to American global leadership and credibility as a nation that respects the rule of law.” See Charles C. Krulak, Letter to the Editor, U.S. Leadership, Credibility Pay Price of Guantanamo, Wash. Post, June 13, 2010.


I know of no place under the U.S. flag in which sheer geography imposes such hurdles on counsel and other trial participants. No, it’s not easy to make time to visit any client who is behind bars, but in what other setting is the mere act of visiting such a production, with access so pervasively controlled by the government? And I don’t mean just getting into the counsel-interview room: I mean getting to the place of detention itself. It may be only 100 miles or so as the crow flies from Miami to Guantanamo, but it might as well be thousands of miles away.


No wonder these cases have taken forever to move forward. Remember, every motion session involves flying in a substantial case of characters: prosecutors, defense counsel, court reporters, translators, paralegals, security personnel, and judges.


Adding to the delay has been the Defense Department’s delay in generating the detailed rules to govern the proceedings.


Even if one were to subtract all time attributed to the effective advocacy of detainee counsel such as present Acting Solicitor General Neal Katyal, it is impossible to justify the parade-like pace of these proceedings.



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So far I’ve discussed accuracy in results, reasonableness of sentences, and timeliness. Are there other factors that bear on public confidence in the commissions?


Mr. Kris mentioned certainty as a factor militating in favor of civilian trials. That’s true. Numerous observers have commented on the fact that the participants in the Guantanamo commissions seem to be making it up as they go along. We simply don’t have a body of military commission precedent on which to draw. Earlier this year, one motions session was convened before the Pentagon issued a manual to replace the outdated one issued in 2007 to implement the 2006 Military Commissions Act. Is it difficult to have confidence in legal proceedings where the rules are announced in midstream. This kind of thing in turn builds in further delay—see above. Mr. Kris thinks uncertainty will recede over time. Maybe it would, if we were willing to give these cases an eternity.


How rules of law are made is itself the kind of thing that contributes to or detracts from public confidence. For those of us who thought we were actively participating in the legislative process that led to enactment of the 2006 MCA, it was a bitter experience to learn that the key elements were being worked out behind closed doors. Much the same happened with the 2009 legislation. But that’s Congress, and perhaps there’s no difference between what happened in 2006 and 2009—with the target off the radar screen—and how legislation is typically made in this town.


But the legislation was not the end of it. There were also massive implementing rules, about the size of the Montgomery County telephone directory. Numerous students of the military commissions—myself included—were appalled when the Bush Administration mostly dispensed with notice-and-comment rulemaking for the pre-MCA commissions. Earlier this year, the current Administration dispensed with public comment entirely in promulgating the 2010 Manual for Military Commissions, and failing even to issue an explanatory memorandum—which you and I both know exists—setting forth what had changed from the 2007 version. Observers were on their own in trying to find and understand the changes. (NIMJ conducted a page-by-page comparison, Jonathan Tracy & Mary Weld, Changes to Manual for Military Commissions (2010).) So much for transparency in structuring the administration of justice by military commissions.


Public access to legal proceedings is another potent factor in fostering or eroding public confidence. Where the place of trial is remote and subject to stringent governmental access controls, one would think those in positions of responsibility would bend over backwards to accommodate and indeed, facilitate, public knowledge of the proceedings. (Remoteness also works a hardship on victims.) What, then, to make of the Defense Department’s recent decision to exclude four journalists—including the Miami Herald’s indefatigable Carol Rosenberg, the doyenne of the Guantanamo press corps—on the ground that they had published the name of an interrogator who was called as a witness. Their having done so was said to have violated the Guantanamo media ground rules, but the witness was widely known to have been prosecuted by court-martial and indeed had gone public with the media in his own defense. It is preposterous for the Pentagon to have excluded these journalists, partially if not substantially decapitating the Guantanamo press corps, and thereby depriving the American, Canadian and world public of the benefit of their insights. I hope the Pentagon public affairs apparatus relents and that the federal courts do not have to become involved, but whatever the dénouement, public confidence cannot have been served by this episode.


A legal system that is entitled to respect makes it decisions and the parties’ submissions available in an organized fashion and a timely manner. I invite you to visit the Defense Department’s website for military commissions and draw your own conclusions. The National Institute of Military Justice responded by creating a Military Commission Reporter series to give the bench and bar access to the decisions in user-friendly law-reporter format. Why didn’t the government do this itself?


What are we and others to make of the fact that Congress elected not to confer military commission appellate jurisdiction on our specialized appellate court for military cases, the U.S. Court of Appeals for the Armed Forces? Does a conscious choice like this—routing cases to another court that seems to have been selected only because it has been highly deferential to the Executive and Congress in Guantanamo-related cases—suggest forum-shopping on the grandest scale? What impact does this kind of transparent legislative ploy have on public confidence here or elsewhere?


Finally, our military commission system revolves around an official called a Convening Authority (“CA”), who decides which cases should be prosecuted. The CA is a familiar figure in American military justice, but military commissions do not have to do with maintaining good order and discipline within our forces; they have to do with punishing non-soldiers on the opposing side. Such an arrangement offends settled human rights norms to which our NATO allies subscribe. If part of what we are after is to earn public confidence among the democratic countries with which we share so much, and on which we rely, having a CA—be he who he may (the incumbent has a sterling reputation)–run the show is self-defeating. The power to make prosecutorial decisions should be vested in an independent prosecutor. This is 2010, not 1942.


Could some of these conditions be fixed in a way that was more likely to foster public confidence? Of course. However, at a certain point it becomes too late; an institution becomes tarnished beyond repair. In the case of the military commissions, it’s too late.

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I will close with one last, disturbing thought. Increasingly we have seen United States citizens engaging in conduct that is not reasonably distinguishable from the kinds of conduct for which we have chosen the military commission as a forum. Unless we are willing to change our rules and subject holders of U.S. citizenship to trial by military commissions, and I hope we are not, this pattern injects an arbitrary discrimination that will be increasingly hard to justify.

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