It’s Time to Admit That the Military Commissions Have Failed

I’ve written elsewhere about the U.S. Court of Appeals for the D.C. Circuit’s stunning, unanimous decision in In re Al-Nashiri III to throw out three-and-a-half years’ worth of pretrial rulings by a Guantanamo military commission in the case of the alleged USS Cole mastermind—all because Air Force Colonel Vance Spath, the judge presiding over those proceedings, was actively pursuing employment from the Justice Department as an immigration judge at the same time. Crucially, Spath failed to disclose that fact to the parties. It speaks volumes that the panel, which included Judge Thomas Griffith—a conservative who has generally sided with the commissions in prior cases—saw this as an obvious case for mandamus relief even under the D.C. Circuit’s notoriously strict standard. It likewise speaks volumes that neither Spath, nor the Court of Military Commission Review (CMCR), nor the government’s lawyers understood it as such. Judge David Tatel makes the point explicitly on page 28 of his opinion:

Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility.

Given how unlikely it is that the government will ask the full D.C. Circuit to rehear the decision or ask the Supreme Court to step in, the immediate effect of the April 16 ruling is to return the al-Nashiri prosecution to where it was in November 2015, when Spath first submitted his application to the Justice Department for work as an immigration judge. This will require relitigation of dozens (if not hundreds) of different pretrial issues, along with the potential interlocutory appeals such relitigation could generate, before the case could even get back to the status quo ante. (And that status quo has its own baked-in and potentially fatal jurisdictional defect.) Needless to say, the decision is a body blow to one of the three cases pending before the Guantanamo tribunals.

But the decision’s rebuke of the commissions, the CMCR and the government also merits taking a step back to reflect on the progress of the military commissions more generally—or, more accurately, the complete lack thereof. Here are some relevant data points:

• In 13 years under the Military Commissions Act regime, and 17 years total, the commissions have produced a grand total of eight convictions.
• Six of those eight convictions were obtained via plea bargain.
• Only one conviction (al Bahlul) has survived a postconviction appeal to the D.C. Circuit.
• Even in that case, the en banc D.C. Circuit threw out two of the three charges as plain error in violation of the Ex Post Facto Clause—after the military commissions and full CMCR had unanimously sustained them under de novo review.
• The only charge that survived against al Bahlul (conspiracy) failed to produce a majority rationale from the D.C. Circuit.
• Three other convictions were vacated on appeal—all in cases in which the defendants had pleaded guilty.
• The April 16 ruling in al-Nashiri III is the second time in a case concerning the military commissions that the D.C. Circuit has granted a mandamus petition relating to judicial disqualification.

In 2015, as some of these cases were being thrown out, I wrote a series of posts on how the military commissions were “shrinking.” Things haven’t improved all that much in the intervening four years. And so it’s time to once again ask a question that plenty of folks have been asking since this whole misbegotten enterprise began: What, exactly, is the continuing justification for the Guantanamo military commissions?

Reasonable people have long disagreed, and will continue to disagree, over the lawfulness of the commissions, especially when it comes to their jurisdiction over offenses not recognized as international war crimes and/or that predated the September 11 attacks. I don’t mean to relitigate those (well-joined) debates here. Rather, I mean to ask a policy question: Given how long these cases are taking, given how much money and time and labor hours are being invested into them, and given how poorly the military commissions’ decisions are faring when subjected to meaningful Article III judicial review, why is it in anyone’s interest at this point to continue this enterprise? For the victims of the September 11 attacks, the USS Cole bombing and the other crimes being tried by the commissions, one can hardly point to meaningful closure as a justification. For the government, one can hardly point to the formation of stable forward-looking precedents as a justification (especially given that the alternative is well-settled military detention authority, meaning that the government is not stuck with the choice of trying detainees or releasing them). And for the defendants, well, perhaps the only upside is that their fates are still in limbo, as opposed to the swifter and more certain justice that they likely would have received had these cases been brought in Article III courts from the beginning—or even from the middle, had Attorney General Eric Holder stuck to his guns.

Simply put, it’s time for everyone to admit that the Guantanamo military commissions have failed. JFK’s famous quote to the contrary notwithstanding, failure, in this context, is most definitely not an orphan. The commissions failed for a host of interrelated reasons. They failed because Congress made some fatally flawed structural choices in creating them in the first place. They failed because they couldn’t escape the shadow of CIA torture of many of the defendants, which continues to play a role in so many of the evidentiary disputes in these cases. They failed because the judges refused to show the kind of independence vis-a-vis the government that might have helped to establish the commissions’ legitimacy. They failed because the logistical difficulties of holding these trials at Guantanamo created inevitable delays that dragged out even the most mundane and routine aspects of the pretrial proceedings. They failed because no one in a position to make a difference ever stood up and said “enough is enough.” The Bush administration didn’t. The Obama administration didn’t. And the Trump administration hasn’t.

This isn’t—and shouldn’t be—a partisan issue. It’s about what justice is, and what it isn’t, in the American legal system. Justice Felix Frankfurter famously wrote, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” And yet it is not a fair summary of the Guantanamo tribunals—where, as of today, April 17, 2019, it is still unclear whether the Constitution even applies to the Guantanamo commissions, let alone how it does.

Don’t get me wrong: The government is, in many ways, stuck. Congress has indefensibly barred the transfer of Guantanamo detainees into the United States, even for purposes of criminal trial, and so it’s GTMO or bust for the 40 men still imprisoned there, at least 14 of whom are connected to the commissions. Thus, it’s at least somewhat understandable in the abstract why the prosecutors soldier on—doing the best they can with the hand they’ve been dealt.

But the D.C. Circuit’s decision may only be a harbinger of things to come. The Guantanamo commissions already have a brutal track record when their decisions are subjected to meaningful Article III judicial review, and the biggest case yet, the 9/11 trial, is still to come. Pretrial proceedings are still stumbling along in that case—which has its own panoply of procedural, evidentiary and substantive problems, some of which are now seeping up to the D.C. Circuit. Does the country really want to emerge in the middle of the next decade with D.C. Circuit rulings throwing out convictions and death sentences in these cases, as increasingly it seems it may be forced to?

The April 16 ruling in al-Nashiri isn’t going to be the end of that case. And it isn’t going to be the end of the military commissions. But it’s hard to miss in Judge Tatel’s angry, testy and biting opinion the possibility that everyone might be better off if it were.