The Least Worst Venue

“Trial by military commission.” The phrase warms the heart of some and chills the spine of others. To supporters, commissions are a legitimate and traditional tool for providing criminal justice in the context of war, however unorthodox or unfamiliar the contours of that war might be. They are, on this view, precisely what is needed to bring closure to the otherwise interminable saga of Guantánamo Bay, where 173 detainees remain in military custody. To critics, however, military commissions are kangaroo courts that cannot produce credible verdicts, fit only for prosecuting widely recognized war crimes committed in the course of undisputed armed conflicts.

Framed in this way, the debate over commissions has raged off and on since President George W. Bush established the first post-9/11 commission system by military order in November 2001. And according to Charlie Savage’s account in Thursday’s New York Times and Dafna Linzer’s detailed elaboration for ProPublica, we are in for yet another round in the very near future: Defense Secretary Robert Gates is reportedly poised to lift the moratorium on new military trials for Guantánamo detainees, a freeze that has been in place since President Barack Obama’s inauguration in 2009.

Should the left despair? Should the right rejoice? Neither. The commissions are neither the monstrosities their critics sometimes suggest nor the solution their supporters imagine.

Nor is this latest development much of a surprise, for that matter. The Obama administration has supported some form of commission proceeding for some cases from the outset. The administration supported and signed the Military Commissions Act of 2009, for example, and Obama himself very clearly endorsed the use of commissions to prosecute some — though certainly not all — detainees during his famous speech on Guantánamo and detention policy at the National Archives on May 21, 2009. Later that year, the Justice and Defense departments agreed on a protocol for determining whether Guantánamo defendants slated for prosecution should be tried in civilian courts or commissions. That November, the administration released a list of five Guantánamo detainees to be prosecuted by a commission in accordance with those guidelines.

So why were Thursday’s stories newsworthy? Because it appears that the commission leg of this two-track system now might be going forward by itself, even as the administration’s efforts to bring detainees to trial in civilian courts seem to have all but ground to a halt. According to Linzer’s story, administration officials previously had agreed to pursue new military and civilian prosecutions of Guantánamo detainees at the same time. As a result, the administration had held off on starting new cases in either system while it determined whether the civilian prosecution option would be viable (though two pending commission cases did proceed to the point of guilty pleas in the interim).

The aftermath of the prosecution of Ahmed Ghailani, an alleged al Qaeda conspirator captured in Pakistan in 2004 whose trial was the first test of applying the civilian process to a Guantánamo detainee, gave them an answer of sorts. On one hand, Ghailani actually was convicted on one count and likely will receive a lengthy sentence. But that conviction has been overshadowed to an extent by his acquittal on 284 other counts. Fairly or not, the near miss provoked a substantial political backlash against further reliance on civilian courts to prosecute detainees, an approach that had already become politically toxic in some quarters. Even prior to the verdict, the Democratic-controlled Congress had used its power of the purse to restrict the administration’s ability to bring detainees into the United States and subsequently passed a law that wholly prohibits the use of Defense Department funds to transport them. As a result, the civilian prosecution option appears for the time being to be dead in the water, though Attorney General Eric Holder gamely asserted Thursday that all options remain on the table for detainees linked to the 9/11 attacks.

But this is hardly an unequivocal victory or defeat for either side of the Guantánamo debate. To be sure, the kangaroo-court critique civil liberties advocates level at the military commissions at one point had considerable merit. Bush established the first post-9/11 commissions without explicit congressional authorization, and the system was riddled with problems: Among other things, it permitted non-unanimous verdicts, no particular restraint on the admission of testimony obtained through coercion (or worse), and no role for the civilian federal judiciary or even military judges. But that was then. After the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld determined that commissions of this kind could not be established merely by presidential order, Congress stepped in to explicitly authorize a new commission system, one with substantially greater safeguards.

When Congress revisited the system in 2009’s Military Commissions Act, it pushed the commission system still closer to conformity with the standards associated with courts-martial and civilian criminal trials. In today’s system, appeals ultimately run to the D.C. Circuit Court of Appeals and beyond to the Supreme Court if necessary. Military judges preside at the trials. Ex parte evidence — evidence that is shown to the fact-finder but not the defendant — is not permitted. Verdicts must be unanimous.* And most significantly, not only are the fruits of torture and cruel treatment precluded from admission, but so too are any statements that were made on any involuntary basis. (The sole exception is the rare circumstance in which a prosecutor might want to introduce statements made on the battlefield at the time of capture.)

The major difference between the new commission proceedings and civilian ones is that hearsay is admissible, at least in theory. This no longer amounts to a clear opportunity to seek admission of coerced statements, but it does at least open the door to the admission of statements made by people whom the defendant has no opportunity to cross-examine, a position deeply at odds with the norms of civilian criminal trials and courts-martial. And as Savage reports, this could prove particularly important in cases like that of Abd al-Rahim al-Nashiri, described by the 9/11 Commission as having orchestrated the attacks in Yemen on the USS The Sullivans, the USS Cole, and the French tanker Limburg. So there is certainly room for legitimate criticism of the commissions, but not nearly so much as is commonly assumed.

The commissions’ most zealous supporters, meanwhile, greatly overstate the utility of military trials over the civilian alternative. First, there is no reason at all to believe that the officers who serve as fact-finders in commission proceedings are more likely to convict than civilian jurors. Indeed, one might expect the opposite to be true based on the actual results of the five cases that have gone forward in the commission system thus far. But the truth, of course, is that this is an entirely unknowable proposition; it depends on who gets impaneled in particular cases.

Furthermore, given the new rules regarding admission of coerced testimony, there is no reason to think that dodgy interrogation statements are more likely to be admitted in commission proceedings than in civilian ones. And one should not assume that defendants in commission proceedings will not, in the end, receive the benefit of constitutional rights associated with criminal trials. To be sure, the courts have not yet held that such rights apply or determined how exactly they apply in commissions versus civilian courts. But the issue is pending, and any commission verdict obtained in a trial by running afoul of these rights will risk being thrown out on appeal down the road.

The biggest outstanding question about the new commissions, however, is whether they are actually useful for the sorts of crimes that we most need military commissions for. Arguably the most important charges that are likely to come before a commission are the crimes of conspiracy, unlawful killing in war, and providing material support. Versions of each of these offenses are well established in civilian criminal law; whether they can legitimately be tried in a military commission, however, has long been the subject of hot dispute, and if the answer turns out to be no, the usefulness of the commissions will be much reduced to say the least.

The good news is that this issue already had been teed up for resolution by the appellate courts. The bad news is that we have been waiting for much more than a year for the Court of Military Commission Review to give us an answer, and even after its gets around to doing so the question almost certainly must go on to the D.C. Circuit Court of Appeals and, perhaps, to the Supreme Court. In short, it will be years before we know whether these charges are viable in commissions.

One final point is worth considering: The decision to reopen military commissions, however symbolically significant, may have little impact on the fate of the bulk of the Guantánamo population. Many if not most of the detainees there were never destined for either track of the two-track system, after all, but instead were meant to be either released outright or, for many dozens held in continued military detention in an extension of the status quo. Congress has made it nigh impossible to transfer anyone out of Guantánamo without a court order from the ongoing habeas corpus proceedings through which federal judges are vetting individual military detention decisions. It is thus no longer clear that acquittal in a commission proceeding — or even completing a sentence imposed by a commission — would actually result in a detainee’s release. In the final analysis, for most if not all the detainees, it is the emerging law of military detention being crafted by the judiciary in the habeas cases that truly matters, notwithstanding the deep political resonance of the commissions issue.

*Correction: This article originally stated incorrectly that verdicts in the new military commissions must be unanimous. In fact, verdicts require two-thirds majority votes except in death penalty cases, as in prior iterations. Commission remain criticizable on this ground.