MILITARY COMMISSIONS AND GUANTANAMO ARE IN THE NEWS IN THIS POLITICAL SEASON, AND IT IS INDEED POLITICS THAT HAS DEPRIVED THE COLLECTIVE AMERICAN PUBLIC OF BOTH JUSTICE AND CLOSURE FOR BOTH 9/11, THE USS COLE ATTACK, AND OTHER ACTS OF WAR.
OVERVIEW & INTRODUCTION
The September 11, 2001, attacks on this nation were acts of war carried out by alien enemy actors and propelled the United States into an immediate retaliatory series of actions targeting Afghanistan and other Al Qaeda cells. While a group of operators working with the then Northern Alliance routed the Taliban in Afghanistan, the search for and ultimate annihilation of Bin Laden would take years and resulted from the intelligence gathered from those who have been classified as enemy combatants. A Congressional response to this barbaric attack led to the passage of an Authorization for the Use of Military Force (AUMF), which authorized the President to use military force to pursue, capture, and kill delineated enemies of the United States. These enemies included Al Qaeda, those providing assistance to Al Qaeda, and others. President Bush, understanding that there were unique legal and evidentiary issues attendant to trying these actors, created Military Commissions to place these trials under military oversight. This carried forward a history of military tribunals dating back to the Revolutionary War.
Congress additionally passed the Military Commissions Act of 2006 after the United States Supreme Court in Hamdan v. Rumsfeld (548 U.S. 557, 2006) upheld a challenge to President Bush’s executive order by one of these alleged combatants, ruling that such action must come from Congress. Enter Barack Obama in the run-up to the 2008 election, who embraced the erroneous Clintonian policy that these acts of terror (actually acts of war to foment jihad) were law enforcement and not military issues, and he vowed to end the commissions and try these people in civilian federal courts. Neither Obama nor Clinton had any notion of the vagaries of the battlefield, as well as having zero military background. Neither appreciated nor credited the difficult evidentiary issues involved or the classified information that would be compromised given civilian evidentiary rules and the clear fact that these persons were not run-of-the mill federal criminals—they were waging war on the United States and the West.
After his election, President Obama indeed made good on this promise and announced that the Justice Department would prosecute Khalid Sheik Mohammad, the self-admitted mastermind of the 9/11 attacks, and his co-conspirators in federal civilian courts. This, of course, resulted from the naked politics of simply reversing the Bush-era policies and creating the false assertion that these miscreants had the same trial due process rights as a citizen tried for a crime in civilian federal courts. Nothing could be further from the truth.
Congress pushed back on this but caved to the Obama Administration’s insistence that additional due process protections be baked in. The result was the Military Commissions Act of 2009, 10 U.S.C. Section 948(a), which authorized Military Commissions to try any “unprivileged enemy belligerent,” which included those who engaged in hostilities against the United States or were a part of Al Qaeda at the time of the offense. Evidentiary rules were tweaked, and statements taken as the result of inhumane treatment could not be utilized. This is legally and morally correct, but the tribunals may consider statements made under circumstances that would certainly lead to exclusion in a civilian court. The same is true for physical evidence that may not have a tight chain of custody. Operators do not normally carry evidence vouchers. We do not Mirandize enemy alien war criminals. You get the picture. Notwithstanding these compromises, Obama and his ill-qualified Attorney General Eric Holder considered this “interference” with their view that these offenses were garden variety criminal acts. In fact, Holder stated that Congress’s action was “unwise and unwarranted.” However, they reluctantly changed course and announced that such cases, as defined by the above act and the laws of war, would continue to be tried in military tribunals.
Military tribunals established by the Military Commissions Acts mirror rules of military courts martial. The presumption of innocence, proof beyond a reasonable doubt, jury selection voir dire, the right to counsel, to cross-examine, to present evidence, including exculpatory evidence, and similar due process protections. The differences lie in the practical nature of trying foreign combatants detained in foreign lands and interrogated as such. The procedure makes sense and protects us all in the long run.
President Trump and then Attorney General Sessions were firmly committed to Guantanamo and rejected plea deals. Trump signed an Executive Order in 2018 to keep it open. Although he questioned its costs, Trump was committed to the view that these detainees would be tried by tribunals, and he scrapped Obama’s plans to negotiate the release of some of them. The left combusted. Enter the Biden Administration, replete with Obama retreads, and quietly vowed to close Guantanamo, and apparently the plea deal that rocked the nation last week was meant to further that goal. The Military Commissions are under the direct supervision of the Secretary of Defense, the oft-missing Lloyd Austin, as well as the Convening Authority, an appointed position. President Biden disavowed any knowledge of this act of mercy toward a group of mass killers, and the political implications for his Vice President Kamala Harris were clear. Biden’s ignorance of what his Cabinet is doing is a statement of how he has been hidden and how Austin dropped the ball. Austin, on Friday, rejected the life sentence plea deal, and perhaps heads will roll. Not really. A President Harris will stay the Obama/Biden course and continue the false narrative that military tribunals are really human rights violations and anything else that George Clooney’s Hamas-supporting wife tells her through channels. The remaining detainees will certainly be released in one-sided negotiations. This is yet another example of the false political gloss surrounding Kamala Harris for the next 100 or so days, and, well, I am not buying it. I hope you don’t either.
COUNTLESS DELAYS AND FAILED OVERSIGHT HAVE COMPLICATED THE PROSECUTION OF THE DETAINEES, AND IT IS TIME FOR ACTION, AND YES, ELECTIONS HAVE CONSEQUENCES.
In the past decade, upon information and belief, there have only been a couple of convictions, and they came on guilty pleas. These inexcusable delays are a combination of politics, incompetence, meddling by the intelligence community, and the detainees challenging the actions of, and occasionally, the composition of, the Commissions as well as the Court of Military Commission Review. Mandamus and habeas actions filed in United States District Courts and appeals to the Circuit Courts of Appeal, among other issues, have caused grave delays, compromising the ability to effectively try these cases. This must stop. Pursuant to the Military Commissions Act of 2009 and related rules, a death sentence requires a unanimous verdict by a panel overseen by a military judge. Contrary to popular belief and the propaganda of the ACLU and Human Rights Watch, these tribunals have significant due process protections while harmonizing the evidentiary issues that are unique to these prosecutions. What went wrong? The following must be dealt with through oversight and supervision:
- Detailed defense counsel has rightfully complained that their client interviews and witness interviews are being monitored by our intelligence community. This has led to delays and lengthy motions. Order it to stop.
- Allegations of conflict and personnel turnovers due to the above issue and others have created delay. There have been allegations of personal misconduct by detailed counsel and the presiding judges. Detail capable counsel from the ranks of the civilian community and the military legal community and make it clear that these assignments are career-enhancing or perhaps a great challenge for retired litigators.
- Let the Commissions work, and these trials will produce a result that will gain the confidence of the public. Whether or not a death sentence results, a plea deal is a non-starter, and the challenges of proving the admissibility of statements derived from questionable methods should be left to the court and jury. In the case of the Cole bomber, the FBI states that it has absolutely admissible statements and corroboration.
- Ending these commissions will forever impair their long-standing use to deal with enemy combatants not covered by the Geneva Convention and as a valuable tool to deal with an ever-strengthening enemy not suitable for prosecution in a civilian court.
- Vigilant oversight by Congress as well as the Executive to move these cases consistent with the separation of powers and the avoidance of unlawful command influence—no more “we didn’t know.” They know how to do it. They lack will.
- Finally, if the Department of Justice can cut loose one of its senior members to supervise the due process shambles of the New York Trump trial, why not find another one with the prosecutorial chops to tackle these all-important prosecutions for the benefit of the families of those ruthlessly killed during acts of war? They can find a way. They lack the will.
CONCLUSION
The United States is and will be engaged in a war with an enemy that does not wear the uniform of an adversary sovereign nation and who engages in barbarities that are undeniably acts of war. Adversaries who bomb and target Navy ships, behead American citizens on camera, bomb embassies, attack infrastructure, and commit other acts that do not belong in civilian courts. Such enemies love the left. Reflecting his understanding of the American judicial system, upon his capture in Islamabad, Khalid Sheikh Mohammad said to American agents, “I want an attorney” and “Take me to New York.” He believed he would be tried, as was Obama’s wish, in a federal court and that he would benefit from our criminal due process in that arena. Last week, Biden’s Administration promised him room and board, family contact, medical care, religious worship, and all of the benefits of a modern prisoner for the rest of his miserable life. All at our cost. But for a heated political season, it would have stood. Let the trial begin, and the chips fall where they may. And remember, elections have consequences.
Mike Imprevento
August 2024
