There is an interesting exchange going on between, among others, Laura Pitter (HRW), Steve Vladek, Ben Wittes and our own Cully Stimson about the fairness of the current military commissions system at Gitmo, in particular the al-Nashiri trial. Here is the latest from Vladek at Lawfare.  Here is Cully’s post on the Heritage blog comparing commissions and courts-martial.  And, in reverse order, here is Laura Pitter’s original post that started the exchange, titled “Guantanamo’s system of injustice.”  Interesting debate.

14 Responses to “Military Commissions Fairness Debate”

  1. Just Sayin' says:

    careful…post anything that sounds like a criticism of the commissions here and some will insist you are part of the vast left-wing conspiracy.

    Here’s my thoughts, I don’t know Mark Martins, but (despite allegations from others on this board) I have no reason to think he’s anything but an honorable man.  Others, I can’t say the same about.  That being said, there are a lot of explainations for some of the OMC red star cluster that don’t involve words like “prosecutorial misconduct” and can be summed up with simple incompetence.  And not necessarily incompetence on the part of the poor saps stuck implementing it, but perhaps on the part of the people who crafted it in the first place. 

    But it is ludicrous to suggest that there aren’t sigificant issues of fairness in this system.  Now, personally I think Al-Nashiri is guilty as sin and deserves to hang, but when we as a nation who prides ourself on our efforts to bring Rule of Law to others, decide to create a legal system, and god help us one where death is on the table, that process needs to be fair.

    Pushing procedural rules AFTER preferral of charges? Failing to provide discovery? Retroactive application? Reading AC mail?  (and I don’t buy this convenient Inspire magazine ruse…if the issue was the magazine, why not retrain the scanners on the ways in which a magazine looks different than a letter from an attorney?  Also, the government’s suggestion it was smuggled in by defense is ludicrous…if I’m trying to convince a court my client is not a terrorst, the last thing I want found in his cell is terrorist literature) Refusing to provide a consistent classification policy?

    It’s not a trial, it’s calvin ball.

    The US, and the victims of the Cole deserve better.  There’s a reason so many prosecutors have resigned from the commissions due to ethics concerns.

  2. stewie says:

    I’d wager both points of view engage in hyperbole and omission. Commissions are better than they use to be, and the odds are that the Federal system would be fairer (and goodness knows we have no idea how to do death penalty cases in the military). I don’t have a problem with the concept of commissions, but seems to me we should just run them like courts-martial. Then no one could complain.

    Do folks think a regular court-martial wouldn’t convict and harsly sentence these accused?

  3. Lieber says:

    Just Saying,

    I think there is some merit to the criticisms you pose.  No question.  What I responded to on that other post was your linking to Marcy Wheeler, which isn’t really much different from linking to Orly Taitz.  The source isn’t serious so it’s hard to take the point seriously.

  4. Just Sayin' says:

    fair enough, and one of the problems with the blogosphere.  I found that link somewhere on the merry rabbit hole of internet “research”.  Too many hyper links, too little coffee.

    However, I still have an issue with the fact that 1) uniformed defense counsel have been accused of providing contraband by GITMO commander; 2) those accusations, without any other (publicly available) proof are now being used as an excuse to violate AC privilege.

    I have no doubt General Martins is honorable, but I have equally no doubt that Capt Schwatz is every bit as honorable, yet we have a united states military officer being accused of smuggling contraband on the eve of a new crackdown conveniently timed with the start of a trial.  Whether is coincidence or malice, it “looks” bad.  and yeah, it’s truth out, take with a grain of salt and a whole shaker full of bias, but the quotes from Col Wingard are interesting.

    But fair point on the source and next time I’ll drink more coffee and wake up before linking to moonbats.

  5. Lieber says:

    fair enough.  it will be interesting to see how all this plays out.

  6. Dew_Process says:

    You can write rules, regulations and instructions all you want – which has been done many times over with respect to military commissions.  But, unless they’re followed by all concerned, to include the JTF-GTMO Commander as the Warden of GTMO, we enter the “Alice in Wonderland” system of jurisprudence.  With respect to the GTMO prisoners who have been charged, MCRE 502 [like its MRE counter-part] says:

    “(a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client’s representative and the lawyer or the lawyer’s representative, (2) between the lawyer and the lawyer’s representative, (3) by the client or the client’s lawyer to a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.”

    So we have a Commission Rule, promulgated under the 2009 MCA, which is essentially nullified in the discretion of the JTF-GTMO Commander’s (or his delagee) if he thinks the attorney-client privilege should be breached, absent any judicial intervention or supervision.  The so-called “privilege team” is simply not bound by the attorney-client privilege if “intelligence or law enforcement” concerns dictate otherwise. 

    The sad part about this current fiasco is that we’ve been down this road before.  Prior to the Nuremberg Tribunal trials, there was a debate about whether or not the attorney-client privilege would apply and ironically, the German defense counsel raised hell about that prompting Justice Jackson as Chief Prosecutor to not only agree to honor that privilege, but to build an office in the prison where attorneys could talk to their clients in private and without monitoring.

    Justice Rutledge’s dissent in In re Yamashita, 327 U.S. 1, 41 (1946), perhaps said it best:  “More is at stake than General Yamashita’s fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law.”  He went on to observe:

    “[M]y concern is that we shall not forsake in any case, whether Yamashita’s or another’s, the basic standards of trial which, among other guaranties, the nation fought to keep; that our system of military justice shall not, alone among all our forms of judging, be above or beyond the fundamental law or the control of Congress within its orbit of authority, and that this Court shall not fail in its part under the Constitution to see that these things do not happen.” Id. at 42.

  7. Charlie Gittins says:

    I don’t have any citations handy, but if you go back to the old OJAG testimony about military commissions (early 1900s), the TJAG basically says that MILITARY COMMISSIONS  are expected to be operated like courts-martials with the same rules.  I have always been flumoxed by the fact that the USG does not just court martial the fuckers.  The rules say we can do it; the system works, and if you apply the same system to the terrorists that we apply to out own guys accused of crimes, how can you complain of “victors justice”?  From the minute the Bush administration created the MC’s I have been concerned that they were designed to become outcome determinative.   Just do court-martials.  The Commissions are a joke; a victors justice scheme.  We have diminished the court-martial system by not using it for these guys.  We have spent years spinning wheels where a simple court martial world have sufficed.  And we would not have created a whole bunch of SES jobs to suck the DoD dry.

  8. Who's your daddy says:

    Ahhhh, 10 years and counting.  The gift that keeps on giving.  
    I actually think there is too much due process and they are too westernizied and reflect a law enforcement mentality.  Better if they mirrored the inquisitorial system that 90% of the world uses as opposed the confrontational/accusatorial U.S/UK system.  Then, we could simply force the defendant to be examined.  This would eliminate a whole bunch litigation related to interogation.

    Plus, we need someone with FDR type balls, to “get on with it.”  These guys should all be past tense.

    But then,,,, we wouldn’t still be having all this fun. 

  9. Don Rehkopf says:

    Charlie, you are correct but the source was Colonel Winthrop.  Fast forward, “Army Field Manual [“FM”] 27-5, Basic Field Manual of Military Government (30 July 1940), stated the generally accepted rule: “The procedure of military commissions shall be the same as that of general courts martial, except insofar as obviously inapplicable.”   The 1943 edition of FM 27-5, (promulgated a year after Quirin), was a joint Army and Navy regulation and noted, ” . . . military commissions follow the procedure of general Army or Navy courts martial, except where such procedure is plainly inapplicable. . . .”  And the 1951 MCM, stated: “Subject to any applicable rules of international law or to any regulation prescribed by the President . . . these tribunals will be guided by the applicable principles of law and rules of procedure and evidence prescribed for courts-martial.”

    The problem here was that the civilians who concocted the current Military Commission scheme knew nothing about military law, precedent nor procedure and ignored the advice of the TJAG’s to use GCM procedures.  They were designed to be “show trials” in name only, theoretically a fast-track to death row.

  10. Who's your daddy says:

    Mr. Rehkopf,

    Fair points; however, i dissent.  The Court-Martial circa 1943 and 1951 did not have near the due process that todays courts-martial do.  Fifty odd years of statutory and common law evolved “solely” in the context of “criminal procedure.”  It developed without any consideration for international armed conflict, much less the kind of conflict we now are engaged in.  While the ample due process that now exists is indeed quite proper for an American servicemember charged with a crime; it doesn’t necessarily flow that the due process standards are what is proper for a non-uniformed foreign fighter captured in a combat zone by non-law enforcement personnel, often under fire, and in a foreign country.  It is appropriately difficult to prove an American, presumed to be innocent, cloaked in the right of silence – guilty beyond a reasonable doubt.
    I’m not for abandoning the rule of law, but there is no reason the rule of law can’t be consistent with international standards and our own history, but not equate to a domestic criminal justice paradigm.
    The JAGS were involved in writing the first model, which included Colonel Lietzau among others.  

    I do agree the first version was a disappointment.  The second version really did use the UCMJ and is less susceptible to criticism as not offering enough due process.

    Indeed, the last 10 years proves that if nothing else, these are not show trials with ensuing quick executions.  For some of us — that is there greatest fault. 

  11. Don Rehkopf says:

    @WYDS – I agree to a point, but I don’t think your analysis goes far enough.  First, the UCMJ itself was a radical improvement in criminal procedure, e.g., Article 31, preceded Miranda by 13 years, and the right to counsel preceded Gideon as well.  But, Article 102 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War [GPW], 6 U.S.T. 3316, 3394 (ratified after the UCMJ), mandates trial by the same forum as our military forces are subject to, viz., courts-martial. 

    In FM 19-40, Handling Prisoners of War (3 November 1952), which post-dated the UCMJ and anticipated the ratification of the 1949 Geneva Conventions by the Senate, the Army noted: “. . . no proceedings or punishments contrary to the provisions of the Geneva Convention relative to the Treatment of Prisoners of War are allowed.” [¶ 12; emphasis added].

    Lastly, the 1956 edition of FM 27-10, discusses Art. 102, GPW:

       Interpretation. Prisoners of war, including those accused of war crimes against whom judicial proceedings are instituted . . . are entitled to the same procedural safeguards accorded to military personnel of the United States who are tried by courts-martial under the Uniform Code of Military Justice or by other military tribunals under the laws of war. (See UCMJ, arts. 2 (9), 18, and 21.). [¶ 178(b); emphasis added].

    The problem is that the Drafters of the Military Commissions assumed that the Geneva Conventions of 1949 didn’t apply, contrary to both Congressional intent in drafting the UCMJ and actual, U.S. military practice – as subsequent affirmed by SCOTUS.  Either we are bound by the Geneva Conventions as the “supreme law of the land,” or we abrogate our ratification of them, which would be required under your premise.

  12. stewie says:

    Why would them not being show trials somehow be a fault? Are you actually arguing in favor of show trials? Certainly it’s true they’ve taken a long time, of course is that because of how long the process takes or the need to see what intelligence can be extracted before starting the process?

  13. Just Sayin' says:

    @ Stewie…BINGO

  14. Charlie Gittins says:

    My reference was to a hearing before the Congressional committee that was considering the UCMJ, not Winthrop, although I think Winthrop had it right.  The then TJAG of the US Army stated under oath that the procedures of the military commissions proposed under the UCMJ were to be the same as courts martial.  — As it should be, IMO. But, I go a step father and believe that we should be doing full blown court-martials for the terrorists.  No one could assert that we were imposing victors justice if we subject the terrorists to the same procedure we subject our own military personnel to.  I was among the first critics of the military commissions (Wash Times OPED) and I still believe they were designed to be and are, outcome determinative, which is inconsistent with every value I believe to be important in an American justice system.  Just court-martial them, using the same rules, evidence etc.  You might be surprised that you don’t have to rest your thumb on the scale.