Military Commissions After <em>Al-Bahlul</em>

I take issue with two recent critiques of the Guantanamo military commissions, both arising from a D.C. Circuit panel’s reversal, earlier this month, of the conviction by military commission of Ali al-Bahlul (an al Qaeda jihadist and detainee who had served in bin Laden’s inner circle) for conspiracy to commit war crimes.

In a sneering June 18th editorial, “A Rebuke to Military Tribunals.” the New York Times celebrated the panel ruling. Evidently the paper shared the two-judge majority’s view that one commits a commission-triable war crime only one succeeds in committing it, but not if one merely conspires to do so. (I found Judge Henderson’s dissent quite persuasive, though she wasn’t helped by some unwise litigation decisions by the Department of Justice).

Along the same lines, consider what might be described as piling-on: Last Saturday, on the Lawfare Podcast, commission defense counsel Adam Thurschwell, along with my friend and long-time sparring partner Steve Vladeck, critiqued the commissions, again in light of the Al-Bahlul decision. Here’s Steve, responding to a question from moderator Wells Bennett (who, I should say, well aired the arguments advanced by Judge Henderson in her dissent):

Bennett: ... People are going to want to know, before we get into the legal weeds, what does this really change, on the ground? If you’re either, from the standpoint of someone defending a detainee, or from the standpoint, to the extent you can sort of, jump in to the costume of your adversary, what does it change in terms of the government’s prosecuting power?

Because, in some corners this is viewed as like a bombshell ruling that spells the death of military commissions. But a lot of times we’ve had bombshell rulings that have spelled the death of military commissions, and somehow, someway, the military commissions yet persist.

Vladeck: They’re like cockroaches. [Laughter]

Steve also seemed to cast the military judges at Guantanamo as somehow not worthy of “trust:”

Vladeck: What’s their track record? When it comes to, you know, has...have the military commissions shown that these judges can be trusted to appropriately grapple with important constitutional and statutory questions of first impression? Have they shown that the judges can be trusted to correctly anticipate what their appellate brethren are going to say when these issues get up to the appellate courts? The answers to both questions are resounding “nos.”

And so we might be able to point to isolated episodes, where the military commission trial judges have pushed back, especially when it’s their convenience that’s been implicated, but I don’t know that anyone can point to the track record of commissions as vindicating the claim of Judge Henderson’s dissent and Judge Kavanaugh’s concurrence in the en banc opinion last summer, that we should let the military commissions...that we should trust the military commissions. You know, if anything, whatever one thinks of legality of the commissions, I don’t know how you can look at last thirteen years, as an exercise that should have built trust in anything, other than, that when these cases get to the D.C. Circuit, the government’s actually going to lose more often than it wins.

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First, the Times piece. In what appears to be further evidence of the decline of the Times as a serious journalistic entity, the editorial board falsely claimed that commissions “operate in a legal no man’s land, unconstrained by standard constitutional guarantees and rules of evidence that define the functioning of the nation’s civilian courts.” I doubt that even vociferous critics like Steve or Adam (or any serious legal scholar) would go that far in describing the legal architecture for commissions required by the 2009 Military Commissions Act.

Commissions definitely are not a “legal no man’s land” or “unconstrained.” In 2014 the nonpartisan Congressional Research Service (CRS) made a comparison of the rights provided in military commissions with those in Federal court. Look for yourself, but in my opinion the commissions compare quite favorably, which is remarkable given the very different circumstances in which war crimes occur relative to most Federal offenses. I think that the bulk of the criticisms of the original commission process have been effectively rebutted by the current system.

Moreover, if US military commissions “operate in a legal no man’s land” or are “like cockroaches,” what do we make of international war crimes tribunals? Are they really very different from military commissions these days? Check out the comparison made here. Keep in mind that no international war crimes tribunal provides for grand juries; in fact, none have any kind of juries (at least US military commissions have panels of officers in addition to a judge). There is often no ‘double jeopardy’ as even outright acquittals can be appealed and reinstated. There is no exclusionary rule as we would understand it in US courts; indeed, hearsay and other evidence (even privileged material) routinely excluded in American courts can make its way into an international forum. Come to think of it, international war crimes tribunals are like much of the world’s criminal courts. Are they all “cockroaches” too?

TheTimes editorial also speaks glowingly, preeningly, of the civilian Federal criminal justice system: “federal prosecutors have won almost 200 “jihadist-related” terrorism and national-security cases.” How reliable are those “terrorism” case statistics? According to the CRS, 60% of the cases claimed as “terrorism trials” by the Department of Justice from 2001-2010 actually involved “criminal code provisions that are not facially terrorism offenses.” Moreover, are Federal courts really experienced in trying actual law of war charges (as opposed to some simulacrum unearthed from Title 18)? If so, examples please! Perhaps more importantly, where do the Feds go to get their alleged “terrorism” and “jihadist” cases? From the highly-complex – not to mention dangerous - foreign battlefields with which military commission prosecutors must deal?

Consider this: in 2012 David Shipler argued (ironically, in the Times) that several purported “terrorism” cases were actually “hatched by the FBI.” He said that “undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training.” According to Shipler, suspects “naïvely played their parts until they were arrested.” Some targets are described as “ambivalent, incompetent and adrift, like hapless wannabes looking for a cause that the informer or undercover agent skillfully helps them find.” Not exactly a challenge to get convictions in those kinds of cases.

Furthermore, less than a year ago Human Rights Watch (HRW) issued a devastating report about so-called “terrorism” cases in the Federal system that was entitled Illusion of Justice Human Rights Abuses in US Terrorism Prosecutions. HRW’s Andrea Prasow points out that when you “take a closer look” at the purported “terrorism” cases “you realize that many of these people would never have committed a crime if not for law enforcement encouraging, pressuring, and sometimes paying them to commit terrorist acts.” Again, not exactly tough stuff, convicting such people.

But these are not the only problems with the Federal prosecution system that the Times goes to such lengths to extol. And I am not just talking about its shockingly disproportionate impact on minorities. Remember that the Federal prison population is almost 37% black, despite the fact that African-Americans make up only 13% of the U.S. population. Even the FBI director admits of problems. This alone ought to give us pause about embracing the Federal system for trials for foreign suspects. (And international war crimes tribunals have also been plagued with their own racism charges.)

I would add that federal civilian prosecutions often are, despite frequent claims to the contrary, not conducted under close scrutiny and oversight by Article III judges. Writing in the New York Review of Books last November, Judge Jed Rakoff (senior status with the Southern District of New York) pointed out that just 3% of Federal criminal cases actually make it to trial, the rest being disposed of via plea bargains. The problem? According to Judge Rakoff, “the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.” (Emphasis added.) He contends that the “unfettered” discretion to select charges (along with statutory sentencing imperatives) make it such that the “prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.” Most disturbingly, Judge Rakoff asserts that the Federal process provides prosecutors “with weapons to bludgeon defendants into effectively coerced plea bargains.” “Bludgeon defendants”? Really, is this system so much better than military commissions?

Now about the “trust” issue I mentioned earlier: do we need, as the podcast guests indicate, to question whether or not we could have trust in the military judges (and, presumably, others) involved in the commission cases? Well, I think the public trusts the military, and in a democracy that should matter. Actually, a Gallup poll released on June 15^th shows that the American public has vastly (it isn’t even close) more confidence in the military as an institution than they do in the civilian criminal justice system, to include even the Supreme Court. Additionally, in terms of honesty and ethics, the public routinely rates military officers significantly higher than civilian judges. And just a few months ago a Harris poll found that being a military officer was second only to being a doctor as America’s most prestigious profession.

As to the commissions specifically, last fall, a poll showed that an amazing “63 percent of Americans want Ahmed Abu Khattala tried by military tribunal” as compared to only “29 percent [who] believe he is a criminal who should be tried through the U.S. court system.” (Khattala, who was captured in June of 2014 by special operations forces, is the “suspected ringleader of the 2012 attacks in Benghazi, Libya, that killed a U.S. ambassador and three other Americans”).

Consider as well regarding the “trust” issue that unlike military officers who face no political litmus test for appointment, becoming a US attorney is an unabashed patronage process where candidates come “almost without exception” from the President’s political party. Should we be surprised, therefore that there is recent history of unseemly partisan politics with respect to their tenures?

Furthermore, US Attorneys can get the kind of direction from Washington about how they conduct prosecutions that would not be tolerated in the military system. For example, Judge Rakoff tells us that until recently, “federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain.” (Emphasis added.) Furthermore, according to a 2014 Brennan Center report, as the Federal criminal justice system currently operates, “success” for Federal prosecutors is “simply a measure of how many individuals they convict and send to prison.” Is this prosecutorial culture inherently more worthy of trust than one operated by military officers?

To be clear, I am of the belief that both the Federal courts and military commissions have a role to play in dealing with 21^st century national security threats. The venue decision needs to take into account a number of factors, but especially the “security of trial participants, [the] ability to protect the court venue, [and the] location of evidence in zones of instability or armed conflict.” Philosophically, I also believe that it is a great mistake to assume that the psychology and methodology of domestic wrongdoing is essentially coterminous with that of wartime criminality. I just don’t think offenses committed in one setting (or the mindsets of the respective perpetrators) necessarily equates sufficiently with the other to always dictate civilian court as the preferred forum.

War is different, and the crimes it produces arise from a milieu that is quite unlike the civilian world so familiar to Article III courts. John Keegan, perhaps the foremost military historian of our generation, observed that what he learned from his many years of study of armed conflicts taught him “to view with extreme suspicion all theories and representations of war that equate it with any other activity in human affairs… Connection does not amount to identity or even to similarity …. War…must be fought by men whose values and skills [differ]….They are those of a world apart, a very ancient world, which exists in parallel with the everyday world but does not belong to it.”

Thus, to my way of thinking, truly understanding war crimes requires a keen understanding of – if not experience in – war itself, something Article III courts – and their juries – often lack. Indeed, in a 2008 case it seems that a Federal jury sensed this very sort of inadequacy. In acquitting a former Marine of killing four Iraqi prisoners, the Los Angeles Times reported that the jurors “did not feel qualified to judge a Marine's actions in the midst of a battle.” Thus, military commissions might well provide the best venue in many instances for ensuring that the justice system employed has an optimal understanding of the very unique environment of war.

All of which is to say: If Al-Bahlul truly portends the end of commissions as a policy option, then we ought to despair rather than laugh.