Something is Rotten with the State of the Military Commissions

For readers who haven’t kept up with Lawfare’s regular coverage, the military commissions at Guantanamo Bay have just had one hell of a February. On Feb. 5, Defense Secretary James Mattis unceremoniously removed well-respected legal scholar Harvey Rishikof from his role as the military commissions’ convening authority, less than a year after putting him in charge. Two weeks later, months of conflict came to a head in United States v. al-Nashiri as the military judge overseeing the matter, Col. Vance Spath, abated proceedings indefinitely, proclaiming, “We’re done until a superior court tells me to keep going.” Then, last Tuesday, the United States failed to meet its long-scheduled deadline for repatriating detainee-turned-prosecution witness Ahmed al-Darbi, potentially violating the terms of his 2014 plea agreement.

Even for the beleaguered military commissions—where most matters spend years in pretrial proceedings, and which have had only one conviction upheld on appeal in more than sixteen years of existence—this series of events is exceptional. Each would normally be cause for concern; together they may be signs of a broader crisis, though the military commissions’ characteristic secrecy makes it hard to tell for certain. At a minimum, the failure to explain and correct these anomalies threatens the military commissions’ already tenuous grasp on public legitimacy and draws further into question their ability to fairly and effectively adjudicate. Correcting them will require political leadership that can balance valid security interests with the transparency and procedural protections that the military commissions need if they are to function as legitimate institutions of justice in the eyes of the public. But despite—or perhaps because of—President Trump’s stated commitment to bringing Guantanamo Bay back into common use, there is reason to doubt that the Trump administration is up to the task.

Dysfunction in al-Nashiri

The most complex of these developments has taken place al-Nashiri, where the eponymous defendant stands accused of having participated in the 2000 attack on the USS Cole. Last summer, the chief defense counsel for the military commissions, Brig. Gen. John Baker, raised concerns regarding intrusions into attorney-client meetings by unspecified government agencies, the details of which remain classified. While relevant filings are also classified, unclassified descriptions in the record indicate that the al-Nashiri team claimed reason to doubt those assurances and sought additional discovery. In a still-classified ruling, Spath held that the defense had not met its burden of proof for further disclosures or shown that any intrusions violated al-Nashiri’s right to attorney-client confidentiality. Further, he refused to authorize al-Nashiri’s defense counsel to inform him of the intrusions on the grounds that the information in question was classified and would have to be declassified through normal interagency channels. Civilian defense counsel for al-Nashiri in turn reportedly felt that these rulings placed them in irreconcilable conflict with their ethical obligations to preserve attorney-client confidentiality. They petitioned Baker for permission to resign, which he authorized as being “for good cause”.

These resignations kicked off several chain reactions. First, Spath objected that only the court, not Baker, could authorize the defense team’s resignations. When Baker refused to recall the resigned attorneys on these grounds, Spath held him in contempt and confined him to chambers. Baker quickly responded with a habeas motion in federal district court, though the judge there declined to act after Rishikof, as convening authority, intervened to defer and remit Baker’s confinement. (That said, Rishikof upheld the merits of Spath’s contempt decision, which remain the subject of ongoing litigation.) In the ensuing weeks, Spath struggled to find ways to convince or compel the resigned attorneys to return or the military commissions’ defense office to replace them, going so far as to suggest he may authorize some resigned attorneys’ arrests. None of these efforts, however, were successful.

Meanwhile, the resignations deprived the defense team of their sole “learned counsel” in capital matters, a requirement where a defendant may face the death penalty if convicted, as is the case with al-Nashiri. The sole remaining member of the defense team, Lt. Alaric Piette, motioned to abate the proceedings until the defense team could procure new learned counsel, further noting that the commission would need to resolve the underlying issues surrounding the intrusions if any new learned counsel were to avoid the same ethical concerns. Spath, however, rejected this argument and ordered that proceedings continue on the grounds that the relevant statute authorizing the defense secretary to make rules for the military commissions only required learned counsel “to the greatest extent practicable,” an exception that he found applied to the present circumstances. Piette objected that he was not duly qualified to represent al-Nashiri absent learned counsel and indicated he would attend but not participate. The results were several weeks of one-sided hearings wherein the prosecution called witnesses that the defense team refused to cross-examine, introducing what Spath himself described as a potential “windfall” of reversible error if his reading of the learned counsel requirement proved inaccurate.

In hindsight, Spath’s insistence on moving forward seems to have been an act of (understandable) frustration in response to the defense team’s intransigence, one ultimately aimed at regaining leverage over them by staking his tolerance for reversal against their willingness to let al-Nashiri go undefended. But the “greatest extent practicable” statutory exception on which Spath relied was not in the actual rule that the defense secretary had promulgated, making Spath’s legal position—not to mention his conclusion that the facts warranted its application—highly debatable. As the risk of reversal accumulated with no signs of the defense team’s return, Spath appears to have lost his mettle. As a result, the game of chicken he started ended the way most do: with the party that has more to lose veering wildly out of the way. In a rambling, sometimes emotional Feb. 16 statement, Spath abated the proceedings, stating:

We're done until a superior court tells me to keep going. It can be [the Court of Military Commission Review (CMCR)]. It can be the [federal district court] in D.C. They're all superior to me. But that's where we're at. We need action. We need somebody to look at this process. We need somebody to give us direction. I would suggest it sooner than later, but that's where we're at.

Spath is correct that, absent a change in circumstances, intercession by a higher court will be needed for al-Nashiri to proceed. The prosecution has indicated that it intends to appeal Spath’s abatement order to the CMCR and al-Nashiri is continuing to pursue a habeas petition in D.C. federal district court; subsequent appeals from either will eventually bring the relevant questions to the D.C. Circuit. Even if the parties and courts move expeditiously, the road to any legal resolution is likely to be long. And once al-Nashiri can move forward, Spath will have to seriously consider steps to mitigate the potential error that the one-sided proceedings introduced, most likely by recalling those witnesses the defense team previously declined to cross-examine.

The government could, however, choose to expedite a resolution on its own, either by declassifying the information sought by the defense team or providing credible assurances that attorney-client confidentiality is being preserved. To his credit, Spath pushed for the former, though he maintained that only the relevant original classification authorities in the agencies that originated the classified information had the authority to do so. And Rishikof endorsed the latter in recommending the construction of a “‘clean’ facility” to the military joint task force operating Guantanamo Bay, which is under the command of U.S. Southern Command and thus similarly outside the control of the military commissions. While there may be valid national security concerns preventing such actions, the fact that so many relevant details about the intrusions have come to light makes this seem increasingly unlikely. Instead, the U.S. government’s inability to either pursue these measures or satisfactorily explain why it cannot only contributes further to the sense of paralysis surrounding al-Nashiri.

Thus far, the specific dysfunction on display in al-Nashiri has not affected the military commissions’ two other active proceedings, where defense teams remain in place despite intrusion concerns. That said, defense counsel in each have raised similar objections to other conduct by joint task force personnel that purportedly hinders their clients’ abilities to pursue a legal defense. In United States v. Khalid Sheikh Mohammed (the “9/11 case”), where the former al-Qaeda mastermind and four co-defendants are being prosecuted for their involvement in the 9/11 attacks, defense counsel have objected to aggressive search techniques that they say are intended to intimidate their clients, as well as the inspection and seizure of laptops, papers, and other materials being used in their legal defense. And in United States v. Abd al-Hadi al-Iraqi, defense counsel for the alleged al-Qaeda member have objected both to joint task force personnel’s treatment of their severely ill client and their inability to access him for extended periods while he is receiving medical care. While these objections may or may not have merit, they at least show that the intrusions in al-Nashiri—which presumably took place with the knowledge of joint task force personnel—are an extreme iteration of a broader pattern of debate.

Going Back on al-Darbi

The fact that issues in al-Nashiri have not impacted other proceedings, however, does not mean that they have not affected other detainees. On Feb. 20, just days after the abatement in al-Nashiri, the United States failed to go through with the scheduled repatriation of Ahmed al-Darbi to his native Saudi Arabia. A former detainee turned government witness, al-Darbi pled guilty to various offenses related to his participation in al-Qaeda-linked maritime attacks, including the attack on the USS Cole. Al-Darbi agreed to testify against his fellow detainees as a condition of his plea agreement, and was deposed in both al-Iraqi and—without cross-examination by defense counsel—al-Nashiri in the weeks before his scheduled transfer. In exchange, his plea agreement indicated that he would be repatriated to Saudi Arabia to serve out the remainder of his prison sentence, assuming that the Saudi government agreed.

U.S. officials have indicated that they still intend to repatriate al-Darbi, who they conceded has upheld his end of the plea agreement. However, they have indicated that the United States is awaiting “assurances” from Saudi officials, the nature of which is unclear. Saudi Arabia and the United States agreed to the basic parameters of the transfer at the time of his plea agreement. Further, as Saudi Arabia has accepted detainee transfers from Guantanamo Bay as recently as January 2017, it seems unlikely that additional assurances relating to security measures or humane treatment would be needed, unless al-Darbi poses greater concerns than those prior transferees or the U.S. or Saudi government has changed its relevant policies. Another possibility is that U.S. officials are seeking additional assurances that al-Darbi will be made available for further testimony if needed. This would be particularly important if and when al-Nashiri reconvenes, as the prosecution may wish to recall him for cross-examination by a reconstituted defense team (including learned counsel) in order to mitigate any reversible error that reliance on his deposition might otherwise introduce. Indeed, the prosecution in al-Nashiri expressly described the defense team’s actions as a “scorched-earth strategy” aimed at “one thing and one thing only ... blocking the cross-examination of al Darbi,” who purportedly provided “devastating” evidence of al-Nashiri’s guilt whose litigation value they presumably would want to preserve. Assurances of his continued availability would be the surest way of ensuring such a strategy does not succeed.

To date, al-Darbi’s attorney has expressed confidence that the United States is acting in good faith and intends to move forward with al-Darbi’s repatriation soon. Consistent with this view, al-Darbi’s complaints regarding the delay have primarily been directed towards Saudi Arabia, not the United States. Yet as time passes these feelings may change, particularly if it becomes apparent that the United States is somehow contributing to the delay. In this event, al-Darbi may eventually seek to enforce the terms of his settlement agreement through litigation. Regardless of his success, the damage to the military commissions’ public legitimacy—not to mention prosecutors’ ability to secure similar cooperation from other defendants in the future—from so visibly failing to abide by a plea agreement if this were to occur is difficult to overstate.

Removing the Convening Authority

To the extent that the above developments have a unifying theme, it is the tension between the demands of national security and the prerequisites of a fair and effective adjudicatory system. For the joint task force that operates Guantanamo Bay—and no doubt other U.S. government agencies with equities in the military commissions—the detainees are dangerous individuals who must be monitored and controlled. Yet they are also defendants before the military commissions, and thus must be provided the opportunity to put forward an effective defense if the final adjudication of their crimes is to have any legitimacy (and survive appellate review). Far from new, this tension between security and justice has been a perennial theme for the military commissions since their outset; indeed, identifying the appropriate line between the two has been the subject much of the voluminous litigation contributing to their glacial pace. And complicating the entire situation is the fact that the proliferation of classified information throughout the military commissions’ proceedings require that they do substantial portions of their work out of view of both the public and the defendants themselves, handicapping any efforts at legitimacy.

Over the years, Lawfare contributors have proposed any number of reforms that could aid in better balancing these competing interests. Appellate procedures could operate to adjudicate key legal disputes more quickly. Responsibility for the joint task force operating Guantanamo Bay and the military commissions could be united under one official, making her or him responsible for reconciling their sometimes competing equities. Broader and faster declassification, the public disclosure of more hearings and filings, and other steps towards radical transparency could be strongly encouraged. At a minimum, however, the military commissions need leadership that is sensitive to the difficult tightrope they must walk in order to be successful at their mission. Respect for national security concerns must be paired with strong advocacy in the interagency for conditions that will allow the military commissions to serve as legitimate instruments of justice. And at times, this will require the military commissions’ leaders to advocate for measures that allow detainees to better defend themselves at the expense of other national security interests.

This context is what makes Mattis’s decision to remove Harvey Rishikof as convening authority so discouraging. A careful student of the military commissions, Rishikof showed himself to be a forceful advocate for what their institutional legitimacy requires. Nowhere is this more evident than in his effort to sketch out a path forward in his contempt decision in al-Nashiri, wherein he stated:

Security concerns and classification issues have raised legitimacy issues from the outset of military commissions. Although the appropriateness of their chosen path is now under review, Mr. [a]l-Nashiri’s civilian defense counsel have raised the issue of the lack of confidentiality in attorney-client communications at the detention facilities at [Guantanamo Bay]. To ensure openness and transparency continue in the future, I also intend to recommend to [relevant authorities] that a ‘clean’ facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring.

Rishikof then went on to address the pervasive issue of classified information, stating:

The ongoing issues that precipitated the contempt proceedings are rooted to a great degree in the classified nature of the proceedings, evidence, detention facilities, and personnel involved. The key to the legitimacy of military commissions is transparency ... Although there are legitimate, recognized intelligence equities, they must be balanced against the ability to carry out an orderly trial process so that the pursuit of justice for those involved in the commissions process and provide closure for the victims and family members.

While Rishikof’s role as convening authority did not provide him direct authority over either process, he at a minimum recognized the trade-offs necessary. And more importantly, he was willing to advocate for them in the interagency process that ultimately controls the conditions in which the military commissions operate.

Neither the Pentagon nor Rishikof have given any reasons for his removal. (Nor for that of his legal advisor, Gary Brown, who was removed the same day.) Media reports have focused on possible objections to settlement negotiations between Rishikof and the defendants in the 9/11 case that would have allowed them to avoid the death penalty. Other possibilities include not only interagency objections to Rishikof’s advocacy in al-Nashiri but disagreements over the repatriation of al-Darbi and objections to his reversal of certain new charges against other detainees on technical grounds. Or Rishikof’s removal could be unrelated, perhaps reflecting a simple desire to remove another perceived holdover from the Obama administration. (Rishikof’s name was originally put forward for convening authority under the Obama administration, though he was not formally appointed until the Trump administration.) Indeed, none of these motivations are mutually exclusive. Regardless, in the absence of any clearer explanation, the relationship between the above events and his removal will remain the subject of speculation.

In Political Context

Notably, these recent developments have all occurred against the backdrop of a Trump administration that appears newly interested in reinvigorating the use of Guantanamo Bay. As a candidate, President Trump repeatedly endorsed sending terrorism suspects to Guantanamo Bay and condemned his predecessor for not doing so. Following Sayfullo Saipov’s murder of eight individuals in a New York City terrorist attack in October 2017, President Trump indicated that he “[w]ould love to send [Saipov] to Guantanamo” but was forced to rescind his earlier endorsement of that idea, noting that “statistically that process”—meaning the military commissions—“takes much longer than going through the [f]ederal system” and he felt that Saipov’s trial “[s]hould move fast” towards the death penalty. President Trump then chose to return to the topic in his recent State of the Union address, delivered just days before Rishikof’s removal:

Terrorists who do things like place bombs in civilian hospitals are evil. When possible, we annihilate them. When necessary, we must be able to detain and question them. But we must be clear: Terrorists are not merely criminals. They are unlawful enemy combatants. And when captured overseas, they should be treated like the terrorists they are.

In the past, we have foolishly released hundreds of dangerous terrorists, only to meet them again on the battlefield — including the [Islamic State in Iraq and Syria] leader, al-Baghdadi.

So today, I am keeping another promise. I just signed an order directing Mattis to reexamine our military detention policy and to keep open the detention facilities at Guantanamo Bay.

The executive order that President Trump signed that evening had little practical effect other than to reverse President Obama’s own (never implemented) directive to close Guantanamo Bay. Yet it did direct Mattis to develop new policy recommendations regarding what should be done with individuals captured in the course of an armed conflict, with a specific reference to sending them to Guantanamo Bay.

The extent to which the Trump administration’s views have influenced recent developments at the military commissions is unclear. Several observers have speculated whether the delay in al-Darbi’s repatriation might reflect reflect an unwillingness on President Trump’s part to transfer detainees out of Guantanamo Bay. Indeed, eleven other detainees are currently pursuing a habeas action in part on a similar legal theory, arguing that President Trump’s rhetoric has shown he is unwilling to release them under any circumstances. And President Trump’s evident frustration with the slow speed of the military commissions—as well as his assertions that captured terrorism suspects “should be treated like the terrorists they are”—gives reason to think that his administration might be skeptical of the sorts of measures that Rishikof advocated for in al-Nashiri or plea negotiations that might allow the perpetrators of the 9/11 attacks to evade the death penalty. Of course, any suggestion that these views motivated Rishikof’s removal or any of these other recent events is sheer speculation based on correlation. Yet the pervasive silence surrounding each event gives no clear signs of a more reasonable explanation.

For better or worse, this shroud of secrecy may soon be lifted. Earlier this week, defense counsel for one of the defendants in the 9/11 case motioned to dismiss the charges against their client on the grounds that Mattis’s alleged removal of Rishikof over the plea negotiations constituted unlawful command influence. While the judge in that case, Army Colonel James Pohl, did not grant the motion, he stated his intent on Monday to direct Mattis to submit a written statement explaining the basis for Rishikof’s removal no later than Mar. 19, which Pentagon officials have reportedly said they will do. And even if Mattis were to contest the validity of this order, Pohl further indicated this would be “simply the first step” in investigating the grounds for Rishikof’s removal in order to ensure that it did not reflect an effort to unduly influence outcomes in the military commissions.

If any Trump administration actions are found to rise to the level of unlawful command influence, then Pohl and his peers may find it necessary to issue leaner punishments, dismiss charges, or even rule out the death penalty altogether. This in turn may eliminate whatever advantage the Trump administration sees in the military commissions’ use. After all, the military commissions’ lethargic pace and ineffectiveness in securing appeal-proof convictions already compares unfavorably to the civilian criminal justice system. Trial before the military commissions is also not strictly necessary to detain present or future detainees at Guantanamo Bay, which appears to be the Trump administration’s primary policy interest in the facility. And even if no undue command influence is found, the appearance of interference may serve a terminal blow to the military commissions’ public legitimacy, making them too politically problematic to employ.

The military commissions are flawed institutions, crippled by deficiencies in design, uncertainties about their jurisdiction, interagency interference, and their association with a dark history of torture and abuse. If they are to serve a legitimate and effective function, then their use must be marked by visible and principled restraint consistent with other institutions of adjudicatory justice; otherwise, there will be little to distinguish them from the star chambers doling out victor’s justice that critics accuse them of being. We will know the Trump administration’s true agenda for the military commissions in approximately 60 days, when Mattis provides his recommendations to the president. That said, its rhetoric thus far shows few signs of embracing this perspective. And to the extent his views have helped to drive recent events, President Trump’s repeated calls for toughening the military commissions may ironically prove to be their death knell.