The Next Step in Establishing the Legitimacy of Military Commissions

The appointment of Brig. General Mark Martins as chief prosecutor of the military commissions, as Jack and I discussed here and here, is a step of enormous importance in establishing legitimacy for a commissions process that has floundered almost since the date of its inception. It is not the first such step. Putting the commissions in statute, both in 2006 and in 2009, created an essential legal foundation for them. Martins now adds leadership. But if the commissions process is to gain traction, there is more to be done on the legitimacy side. In this post, I would like to propose some low-hanging fruit: The commissions need an injection of radical transparency. Formally, the commissions process is pretty open. The press can attend commission proceeding--and many press outlets do send reporters. Informally, however, the commissions are less open to scrutiny and observation. The reason is two-fold: geography and bad information policy. Both problems are entirely addressable. On the geographic side, Guantanamo poses some non-trivial obstacles to truly open trials. Yes, lots of reporters fly in to cover military commissions proceedings, and some other observers--particularly from human rights groups--go as well. But many other groups will not send someone for a long period of time to Guantanamo Bay, though they might well observe more casually a trial in, say, the Eastern District of Virginia or in the Southern District of New York. The groups that do attend often have strong positions against the legitimacy of the commissions; they attend in order to critique. The press, meanwhile, will tend to focus overwhelmingly on the narrative dimensions of a given trial--what happens to the particular defendant--not on the institutional development of the trial forum. So the result of holding commissions at Guantanamo is a considerable self-selection bias in the list of observers. You don't get the casual drop-in visits from interested law professors or law students, freelancers, or the curious. The audience, rather, will tend to be those who are committed enough to spend a great deal of time at a trial--and who work for organizations committed enough and resourced enough to send them. There are exceptions, of course, but this is a pretty good rule of thumb. To cite only one example that will, I hope, make this problem vivid to readers of Lawfare, you probably won't get Lawfare at a trial held at Guantanamo. I cover every single habeas hearing at the D.C. Circuit. And Bobby knows more about the relationship between federal criminal law and the substantive law of the commissions than the combined press corps that will cover the KSM trial. But given our other commitments, professional and personal, it is simply unthinkable that either of us is going to spend weeks or months at Guantanamo monitoring this trial. The result is that we--and Lawfare readers more generally--will be dependent for our real-time commentary on facts relayed to us from people who have different interests in the process than we do and will describe it very differently than we would. The Pentagon's information policies compound the inherent geographic problems. Unlike in the federal courts, there is no real-time docketing for briefs, transcripts, and orders. The Office of Military Commissions' web page takes weeks, sometimes months, to make materials available. The result is that people who don't happen to be at Guantanamo for a given proceeding have no window into the process other than that offered by the observers who are there. These problems, it seems to me, have the same simple solution: A dramatic increase in the transparency of the military commissions process. The commissions web site should get real-time filings and quick transcripts, as the PACER system offers in federal court proceedings. And critically, the live video feed of proceedings (which is shot anyway for the benefit of reporters in overflow rooms at Guantanamo) should be available stateside as well. At a minimum, a closed-circuit video feed should be accessible to anyone who wants to see it at sites around the country. This would, I suspect, have a dramatic impact on the number of people who view the process first-hand--and that diversity will affect what ends up being said about the process. Ideally, the transparency would go further; video could be made available on the web for the public at large to see, and CSPAN could be invited in. Unfortunately, the Manual for Military Commission seems to prohibit this (see Rule 806(c)):

(c) Photography and broadcasting prohibited. Except as otherwise expressly authorized by the Secretary of Defense, video and audio recording and the taking of photographs—except for the purpose of preparing the record of trial—in the court room during the proceedings and radio or television broadcasting of proceedings from the courtroom shall not be permitted. However, the military judge may, as a matter of discretion permit contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed under R.M.C. 804 or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators.

Barring changes in the rules, which would presumably present a bureaucratic nightmare to get done, closed-circuit presentation domestically is probably the best bet--and would be a big breakthrough. It would make the commission promise of public trials literally true: Commission trials would, as they are not now, be available to the public. To put the matter simply, if commissions are to have legitimacy, they need to be the sort of thing one presents with pride--not an embarrassing second-cousin of the real trial that one does off-shore where the public, elements of which are invited, is most unlikely to show up. Showcasing the trials will, of course, facilitate criticism of them. In this case, however, I suspect the opposite may also be the case. The critics, after all, care enough to be there no matter where commissions take place. It's the rest of us who will see them if the doors swing open wide.