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Ten years after President Bush’s creation of the military commissions system at Guantánamo Bay, only six cases have been completed and the legitimacy of the system remains in question.¹ Compare this to the more than 400 terrorismv-related trials completed in the traditional criminal justice system.² Yet the battle over the proper venue in which to try and detain suspected terrorists continues. Recently, there have been efforts in Congress to require mandatory military custody and military commissions trials for certain terrorism suspects based on suspicion of terrorism activity alone.³ These proposals are moving well beyond Guantánamo and are cause for grave concern by the criminal defense bar.

The debate in Washington is full of political rhetoric and is seriously lacking in fact and law. The efforts to overmilitarize our counterterrorism efforts are a direct result of the fact that the United States is in a state of war — so the theory goes — and therefore we must utilize the military in order to keep our country safe. However, supporters of this view fail to recognize the important role the criminal justice system has played in protecting our national security. There has been no evidence that the federal criminal process is incapable of ensuring effective law enforcement and justice for the accused. It is time that members of Congress recognize the abilities of the men and women of the criminal justice system rather than second guess them.

It is also time that we stop trying to “balance” civil liberties and constitutional protections against national security. As members of the criminal defense bar know best, it is by enhancing these safeguards that we strengthen national security. The finest example of this is giving Miranda warnings and providing suspects with access to a lawyer. We have seen time and again how affording suspects this constitutionally based right can help gather intelligence and swiftly bring terrorism suspects to justice — take for example the Christmas Day and Times Square bombers.

In spite of the successes of federal courts, there is still a push in Congress to strictly require trial by military commission. NACDL opposes these measures.⁴ Despite efforts to revise the system in 2009, the Guantánamo military commissions remain constitutionally suspect and are lacking in fundamental due process protections. The Military Commissions Act of 2009 and the 2010 Manual for Military Commissions permit the use of hearsay evidence, coerced confessions, and evidence derived from statements made by the defendant as the result of harmful interrogation techniques. Similarly, the validity of the crimes charged before the commissions, namely material support of terrorism and conspiracy, remain subject to legal challenge as they have not traditionally been considered war crimes. These issues would not arise in the traditional federal court system.

Aside from the formal differences between the two systems, there are important structural differences — transparency and public access. While the commission proceedings are ostensibly open to the public, the remote location and restricted access to Guantánamo Bay, Cuba, greatly limit public access to the proceedings. Likewise, access to rumored domestic viewing sites is currently restricted to select media and victims’ families, and are, so far, off limits to non-government organizations and the general public.⁵ 

While the Obama administration “remains committed to closing Guantánamo,”⁶ congressional bans signed into law by President Obama guarantee that the detention facility will remain open at least for the foreseeable future. Current legislation prohibits the use of funds to transfer any Guantánamo detainee to the United States, even for the purpose of prosecution ^,7 and requires the administration to meet onerous certification requirements before it can transfer any detainee to his home country or to a foreign county.⁸ Recent proposals seek, for the first time since 9/11, to codify a system of indefinite detention without charge for existing Guantánamo detainees and future captures — including U.S. citizens.⁹ 

As the debate regarding the proper venue in which to try and detain terrorism suspects continues, NACDL will continue to oppose the Guantánamo military commissions and the use of indefinite detention without charge, and will continue to support efforts to preserve the use of traditional federal courts and U.S. courts-martial to try terrorism suspects.¹⁰ This month marks the 10th anniversary of the Guantánamo military commissions. Given their profound constitutional deficiencies and perceived illegitimacy, the administration and Congress should reflect on their continued viability. Now is the time to end the use of the flawed commissions system, not solidify its place as a parallel, second-class system of justice.

Notes

1. See http://www.mc.mil/CASES/MilitaryCommissions.aspx.
2. Letter from Ronald Weich, Assistant Att’y Gen., U.S. Dep’t of Just., to Sen. Patrick Leahy and Sen. Jeff Sessions, Chairman and Ranking Member of S. Judiciary Comm. (March 26, 2010), available athttp://www.justice.gov/cjs/docs/terrorism-crimes-letter.pdf.
3. S. 1253, 112th Congress § 1032 (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1253rs/pdf/BILLS-112s1253rs.pdf; S. Amdt. 753 to H.R. 2112, 112th Congress (2011), available athttp://www.gpo.gov/fdsys/pkg/CREC-2011-10-17/pdf/CREC-2011-10-17-pt1-PgS6606.pdf#page=4.
4. See NACDL Board Resolution of Aug. 6, 2011 (http://www.nacdl.org/About.aspx?id=21157).
5. Carol Rosenberg, Pentagon to Beam War Crimes Trials to U.S. Soil, Miami Herald (Sept. 25, 2011), available at http://www.miamiherald.com/2011/09/25/2424442/report-pentagon-to-beam-war-crimes.html.
6. Jeh Johnson, General Counsel, U.S. Dep’t of Defense, Address at the Heritage Foundation (Oct. 18, 2001), available athttp://media.miamiherald.com/smedia/2011/10/18/16/22/1l9Nv5.So.56.pdf.
7. Ike Skelton National Defense Authorization Act for Fiscal Year 2011 § 1032, Pub. L. No. 111-383 (2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-111hr6523enr/pdf/BILLS-111hr6523enr.pdf.
8. Id. at § 1033.
9. S. 1253 § 1031, supra note 1.
10. See NACDL Board Resolution of Aug. 6, 2011 and Feb. 28, 2009 (http://www.nacdl.org/About.aspx?id=21157; http://www.nacdl.org/About.aspx?id=19624).

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