Stepping out of Line (Redux): Refluat Stercus or an Essay in parts on the KSM and other Military Commissions, Torture, Habeas and Detention, Targeting with Drones, False Pretenses for the War in Iraq and other aspects of the current conflict and accountability

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I am moved to write about several aspects of the current conflict in this space as part of what I perceive as my duty as a professor of international law and an American citizen living and working in Toledo, Ohio.  What I have to write may take some time and be over several posts, but I will endeavour to give the same name and give the different aspects of these posts.  I would be happy if people would feel free to link to these articles if they find them of interest.

I. Military Commissions Generally

With the arraignment this morning of KSM and the other alleged 9/11 plotters, the next act of the military commission endgame plays out with the whole world watching. We are asked to watch and see the quality of the system and judge for ourselves (Brig Gen Mark Martins Remarks May 4, 2012 http://www.lawfareblog.com/2012/05/live-blogging-tomorrows-arraignment-in-united-states-v-ksm-et-al/#more-7092).  There are those who have watched past proceedings who assure us they were fair (Benjamin Wittes, Will Military Commissions Survive KSM? The Washington Post, May 4, 2012, http://www.washingtonpost.com/opinions/ksm-trial-will-put-military-commissions-to-the-test/2012/05/03/gIQAXeE0zT_story.html) and there are those who have worked in them who  challenge their fairness (Morris Davis, Khalid Sheikh Mohammed Gets His Way, Salon, May 2, 2012, http://www.salon.com/writer/morris_davis/).

 Is it true that  “Quietly and gradually, the commissions have become a real court?”

Back on September 25, 2006, after the Supreme Court had decided Hamdan v/ Rumsfeld that summer stating that at least Common Article 3 applied to the detainees and striking down on statutory grounds the military tribunals created under the President’s Military Order of Novermber 13, 2001 I wrote a lengthy annotated analysis of the then proposed compromise draft of the Military Commissions Act of 2006 in a Jurist post (‘All the Laws But One’: Parsing the Military Commissions Bill, September 25, 2006, http://jurist.law.pitt.edu/forumy/2006/09/all-laws-but-one-parsing-military.php) .  

I republish here the lengthy introduction to that annotated analysis because the introduction speaks to the spirit of the military commission process in the Presidential Military Order and the Military Commission Act of 2006 periods or what might be called the Bush phase.

 In this essay I offer an annotated review of the compromise version [PDF] of the Military Commissions Act of 2006 released late last week. My focus, however, is not on the sections that have so far been the subject of great discussion (classified information, common article 3, habeas corpus, offenses, etc.) but rather on what the compromise drafters are trying to do overall.

It appears that what is going on here is broader than what I have seen described. The compromise drafters appear to be decoupling these military commissions from international law, from domestic courts-martial, from other types of traditional military commissions, from any other law. These alien unlawful enemy combatants, these human beings, are in fact being decoupled from “all the laws but one,” in the words of President Lincoln. The power of this effort should not be underestimated because as the lone superpower, the act does no less than push out to the world a state practice that would bring us back to pre-Geneva Convention standards for these people, worthy of only “special process”.

From this view, these individuals have committed such heinous crimes that their process and punishment should be in a carefully controlled hermetically sealed environment that should not contaminate any other procedures that might impact more “deserving” characters. In the 18 sections below I examine the provisions that struck me that – taken as a whole – give us the outline (if we wish to look) of this “special process”. We must remember that this special process is being created using all the ordinary words we have seen before. That is in one sense the genius of this effort. By carefully pulling together points strewn in many places including Hamdan v. Rumsfeld, words that are familiar are able to create a unfamiliar “special process”.

For this special process, this group of human beings is segregated from the rest of mankind. They are segregated and by that segregation they are declared a different type of human being. Based on the responses of Republicans and Democrats, the American Congress, the President and by extension all the American people are willing to have these people declared as different. Moreover, the United States Government is willing to have these rules applied to aliens and in that sense is making a statement to all countries who might seek to invoke diplomatic protection for these non-Americans. Those countries must now consider (“are you with us or against us?”) whether their countrymen are truly a different type of human being such that they will acquiesce in the American determination of segregation.

This, I would suggest, is the essence of the decision that is going to be made this week by this Congress on this legislation. Is America going to declare certain human beings beyond “all the laws but one” depriving them of common levels of human dignity? This type of separation resonates in American history at many points – in the Constitution in its treatment of slaves, in the reservations for Native Americans, in the exclusion of Asians, in the status of women. It resonates in other countries’ histories also, such as in the Black Codes in France, the treatment of Algerians by the French and the laws for the overseas territories, the time of apartheid in South Africa, and the Nuremberg Laws in Nazi Germany. These are only some examples and others can think of more ancient historical references (such as who was a citizen of Athens in the days of its empire).

It points a question mark at the Universal Declaration of Human Rights and the rest of the International Bill of Rights. We are asked to think that this might only be for the current “difficulties” but the legislation does not have any sunset provision. A permanent track is created and any Congressperson or Senator who might seek to amend it in the future is likely to be immediately excoriated for being “soft on terror”. Much power is centered in the President and the unitary executive in the implementation of the process with extremely limited judicial review.

This is what bothers me greatly. For on every occasion I can remember where this kind of special process occurs there is a person who stands up in front of the all powerful in that process and asserts his human dignity. A person like David Wainapel, the late husband of a late friend who challenged a Nazi camp commander in the center of his concentration camp. David Wainapel was considered by that special process as a non-human, but David asserted his humanity. I suspect that these alien unlawful enemy combatants and their lawyers will assert their humanity in front of this special process and the question will be whether we are capable of seeing that humanity (which is to see the evil of which we are each capable for those of them who are guilty) and whether we deny what we are capable of by denying their humanity. And by that denial, I fear we produce an abomination in our lust to end the presence of these persons. In a sense, their victory will have been complete in having us put such effort in creating such a special process for them. We give them their status by our treatment of them – the strangest aspect of all this.

Something deep in the American soul was stirred by the 9/11 events. Something that reminds me personally of what one sees in the eyes of lynch mobs in the old pictures. Except, now those standing are not exclusively white but are a rainbow coalition to ban certain aliens from the benefits of human dignity. There is a coldness to the hate. There is a precision to the process of destroying these persons. There is a determination and an exquisite intelligence with which this is done – through processes that are oh so democratic.

Those pushing this special process have so much power to sway us. All politicians are afraid if they stand against this that millions of dollars will come raining down on them from “the other side” (Republican or Democrat) for being “soft on terror”. Persons of great stature have bought into this compromise (McCain et al) giving psychic cover for those to vote for this language. The rest of the world could make an outcry but one feels that the efforts so far are perfunctory – half-hearted – maybe because the rest of the world wants this special process to develop that they can apply to their special group.

It might be possible for some lone Senator or some lone Congressperson to stand up and say “This is too much for mankind. We have fought too long to not create these kinds of special processes.” We await that champion of human dignity in all its frailness. My fear is that there is no one.

In 2008, I wrote an article entitled No Third Class Processes for Foreigners, 103 Northwestern U. L. Rev. Colloquy 88 (2008) in which I referred in particular to Salim Hamdan’s effort to block his military commission from being started and the judgment of the United States District Court Judge James Robertson as well as the decisions of the military judge (Judge Keith Allred) in Hamdan’s military commission in the motion to suppress hearing.  I refer anyone reading this to the discussion in that article but for here I will present the takeaway, to wit:

The Salim Ahmed Hamdan military commission recently concluded at Guantánamo. This is the second military commission, the first having been the subject of a plea agreement made by the Australian detainee David Hicks.[12] I opposed these military commissions as being fundamentally unfair when they were being considered by Congress back in 2006. The MCA appeared to disconnect these detainees from domestic and international law, subjecting them to a hermetically sealed process under the MCA alone. Since then, in Boumediene, the Supreme Court has pried open this process by finding constitutional habeas corpus to be available.[13] The contours of such habeas relief are now being worked out in the lower courts.[14] In light of the torture found to have been conducted by the United States and its allies on detainees, one of the major questions for these military commissions has been the manner in which coerced evidence and hearsay evidence will be treated. The Hamdan military commission provided the first glimpse at how the Military Commissions will handle evidentiary matters in an actual trial. While the MCA represents a great deal of understanding of the interstices of U.S. law, because of the departures in the act from what would occur in courts or courts-martial, I have been worried that the process would be unfair “as applied.”

The Hamdan military commission confirmed that this process is not consistent with fundamental norms of American justice. I came to this conclusion early in the proceedings, through an examination of the Memorandum Order of Judge James Robertson of July 18, 2008 and the Ruling on Motions to Suppress of Military Judge Keith Allred two days later on July 20, 2008. This Essay walks through these two orders because they appear to be foundational for the Hamdan military commission and likely will also be foundational for subsequent proceedings with “bigger fish.” My conclusion is that in contrast to courts that provide first class process, or courts-martial that provide second class justice, these separate and unequal military commissions are a third class process for foreigners in an almost hermetically sealed container. They are procedures aimed at hiding and turning a blind eye to the policy of cruelty towards detainees, not about providing meaningful due process.

With the ending of the Bush phase of the Military Commissions marked for me by the Hamdan and the Boumediene Supreme Court decisions, the Obama phase of the Military Commissions has begun.  As many know, the KSM military commission that started eight minutes ago is being conducted under the Military Commission Act of 2009, an act which was created further to a detailed review by the Obama Administration and bipartisan passage in Congress.  Chief Prosecutor Brig Gen Mark Martins,  in the above post, several speeches at Harvard Law School and other venues, in press briefings during the recent military commissions for Al-Nashiri, etc. has highlighted the significant improvements in the military commissions thanks to the revisions of 2009 and asked us to watch how these commissions proceed to make our own determination about their fairness.  Even last night, to counter concerns about evidence from torture and cruel inhuman and degrading treatment being introduced, Brig Gen Martins felt it important to highlight to those in the press at Gitmo that:

 Second, some have said that any attempt to seek accountability within the military commissions system must inevitably be tainted by torture.  To those who have these concerns, we say, “we acknowledge your skepticism,” but we also say that the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman, or degrading treatment, and we will implement the law.  These proceedings will be fair, and I submit that we military judge advocates who are carrying out assigned duties in this reformed process have some standing to maintain that they will be fair.   Let me be clear: we will not use statements obtained as a result of torture or cruel, inhuman, or degrading treatment.  It was Judge Advocate General of the Army George Davis who denounced the use of the euphemistically named “water cure” during the Philippine Insurrection more than a century ago, and United States military lawyers since that time have been an important voice for the principle that confessions of an accused must be voluntary.  And the prohibition applies to so-called “admissible hearsay” as well: even otherwise probative and reliable out-of-court statements will not be admitted if unlawfully obtained or if the will of the speaker was overborne.

On these and other matters, I am not saying simply “trust us.”  I am asking you to withhold judgment for a time and to watch and to listen.  If you do, I believe you will see a system worthy of your and the public’s confidence.  And now, I will take questions.

       *      *     *     *     *

In closing, I have come to see firsthand from observing justice systems around the world that what matters is not the majesty of the physical surroundings or the trappings of the courthouse, but rather the wisdom of the court and the quality of its justice.  Austere locations are nothing new to justice, and particularly to military courts, and I am confident that this one will achieve fairness and justice despite the modest setting.  It is encouraging that all of you have elected to endure the inconveniences and the austerity of the setting to watch these proceedings.

 Of course, the efforts here is focused on those who are in Guantanamo for the KSM or 9/11 defendants military commission.  But just watching the KSM military commission is not good enough.  Already, the military commissions of high value detainees Majid Khan of February 29, 2012 and Abd Al-Rahim Hussein Muhammad Abdu Al Nashiri Motion hearings of April 11-13, 2012 done under the Military Commission Act of 2009 have had some troubling aspects to them. 

On February 29, 2012, Majid Khan pled guilty under the Military Commissions Act of 2009 to conspiracy, murder in violation of the laws of war, attempted murder in violation of the laws of war, material support for terrorism, and spying.  I will discuss below the broader issue of whether a military commission of this kind can charge someone with the substantive crimes to which he pled guilty, issues of great significance.  For now, working from the transcriptions provided by lawfareblog.com, I commend to all to read the Majid Khan Arraignment transcritpions and in particular the Majid Kahn Arraignment # 4 (http://www.lawfareblog.com/2012/02/majid-khan-arraignment-4/). 

 The manner in which Khan is taken through and responds to the recital of the various charges against him and the paragraphs of the Pre-Trial Agreement troubled me both for what was said and for what was blotted out.  While the entire arraignment summaries are of great interest, I was struck in particular by a particular section, to wit:

Judge Pohl verifies that Khan waives his appeals rights and gives up the right to collaterally attack his conviction. He also verifies that Khan understands that under the PTA, he can’t litigate or challenge the circumstances of his capture or detention—except that after he has served his approved sentence, he retains the right to challenge any continued detention through habeas. Khan says he understands that he can’t sue the CIA for what happened in the past and that the government can still hold him after he does his time—that this agreement does not guarantee that he will ever go free.

“I’m making a leap of faith here, sir,” he says.

Judge Pohl also clarifies that Khan has agreed to seek dismissal of his pending habeas petition without prejudice.

At this point, the audio gets blocked, presumably because Khan has mentioned his CIA detention. When it comes on again, Judge Pohl instructs him not to discuss any individual agency of government—whereupon the feed briefly goes out again.

When it returns, Judge Pohl asks Khan whether he agrees to join the government in the request for a four year sentencing delay. He does and waives any speedy trial rights. He also affirms that he has agreed not to offer live testimony of any Guantanamo detainees at his sentencing hearing, when it does take place. He agrees that the agreement is binding and that the government could prove him guilty. And he once again waives the right to trial and the right against self-incrimination and affirms that he is satisfied with his representation. He affirms again that he has been fully advised of the charges against him and the legal effects of his plea and that he understands that he can withdraw his plea at any time before his sentence is announce but would then lose the benefits of his plea agreement.

After going over a few other matters and reiterating—and receiving Khan’s assurance—on several questions related to the voluntariness of the plea, Judge Pohl accepts the plea and finds Khan guilty.

I presume that this is the kind of voluntary plea to which Brig Gen Mark Martins was referring in his comments last night.  And, maybe in the lexicon of criminal law specialists all of this looks quite normal and consistent with due process.  What struck me though was that in this crucial moment of Mr. Khan’s pleading guilty, Mr. Khan goes back to his detention at the hands of the CIA and that treatment.  Brig. General Martins has wanted us to understand that evidence from torture and cruel inhuman and degrading treatment will not be admissible but what clearly is present (even if the mike is muted for the world) in the proceeding is the memory of the CIA detention.  That CIA detention clearly weighed on Mr. Khan’s mind as he spoke of it as he was pleading guilty.  Moreover, as evidenced by the agreement, that CIA detention also weighed on the mind of the prosecutor and Judge Pohl of the court pursuant to the specific discussion of the waivers that are in the plea agreement. 

Put another way, while no evidence derived from torture and cruel inhuman or degrading treatment is admitted into the military commission, the memory of that treatment and renouncing doing anything about that treatment forms a central part of the plea deal.  One could imagine the nature of the voluntariness of the plea agreement if it had been given in the absence of that torture and cruel inhuman or degrading treatment as compared to the nature of this voluntariness in the shadow of that torture and cruel inhuman and degrading treatment as was demonstrated in this arraignment.  The absence of introduction of evidence does not eliminate the effects of that treatment and its impact (some might say taint) on the whole process.  The Obama phase guilty plea is fruit of the Bush phase torture and changing the atmospherics of the court rules does not alter that straight line – and therein lies a dilemma.  One might see this dilemma as being whether nothing can be done in a judicial proceeding, to rid the result of the taint of that torture and cruel, inhuman and degrading treatment to make sure that both judicial forms and judicial norms (using Justice Robert Jackson’s famous phrase from his “The Rule of Law Among Nations” speech of April 13, 1945, http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-rule-of-law-among-nations/) are respected, even in or maybe especially in circumstances of a voluntary plea such as that of Mr. Khan.  We all have in our memories the show trials of Stalin in which the defendants pled guilty in the court proceeding but whose pleas were considered derived from torture and disregarded.  Once again, the treatment is in the court and even without evidence being introduced taints the process.

In the second military commission under the Military Commission Act of 2009 of Mr. Al-Nashiri the motion hearings are the subject of a series of transcriptions over at lawfareblog.com that I also commend to readers.  Here the rules of the Military Commission Act of 2009 are applied and the counsels wrestle with them.  These procedural battles may cause the non-lawyer (and maybe lawyers who hate procedure) to be completely bored.

There are a few points that are of relevance. 

An early part of the motions are concerned with defense counsel being able to meet with Mr. Al-Nashiri without him being shackled and for Mr. Al-Nashiri to appear in the court without being shackled.  The concern being raised by the defense with regard to that is that the shackling reminds Mr. Al-Nashiri of his treatment as a high-value detainee by the CIA and troubles him.  The back and forth on this brings back the distinction between what are conditions of confinement as opposed to interrogation techniques.  For the uninitiated, this may seem arcane, but for those following this topic for some time, not only is the treatment at the CIA black sites being brought into the courtroom but also the memos of particularly Stephen Bradbury and John Yoo and possibly others that made distinctions between conditions of confinement and permissible interrogation techniques.  It should be obvious that shackling can be viewed as a security condition of confinement, but it, like all other aspects of the confinement,  form part of the manner in which the individual subject to interrogation techniques experiences the detention.  For example, when my godfather Romeo Horton, was held by the Doe government in Liberia after that coup, he was held in the dark.  Being held in the dark might be a condition of confinement (just like being held in a place that is light all the time, or noisy) and is not per se interrogation but forms obviously a part of the experience of detention with impact on the detainee.  While there are differences between confinement conditions and interrogation techniques, the point is that the shackling is a dual use type of procedure when it is part and parcel of a condition of confinement and part and parcel of the process of torture and cruel, inhuman or degrading treatment.  In this sense, once again, the CIA black sites experience is back in Mr. Al-Nashiri’s military commission even in no evidence from the period of his or others detention and torture or cruel inhuman or degrading treatment is admissible. 

These issues of the shackling further cause the CIA black site experience to come into the military commission because the press are seeking that any hearings on the treatment of Mr. Al-Nashiri at the black sites be open to the press so that there can be transparency and government misconduct not be allowed to be hidden under an argument of national security (as happened in the United States v. Reynolds, 345 U.S. 1 (1953) case in which the state secrets privilege was originally developed by the Supreme Court).  Judge Pohl had the dilemma of if he wanted to hear evidence he had to also decide on press access to what the government would be seeking to be closed hearings.  Judge Pohl found an elegant solution to avoid having to have that CIA treatment evidence come and avoid the dilemmas of holding a hearing.  For me, the significant point is that the CIA treatment reared its head again, public scrutiny of that treatment was risked, and then the judge found a creative way to make that particular evidence not intrude into either the public or classified aspects of the case.  And, this significant point again shows how that treatment weighed on the process of the military commission, weighed on Mr. Al-Nashiri’s experience of that process as a defendant subject to possible death penalty, and has weighed on the government in formulating its approaches to the case.

But, there is more in Mr. Al-Nashiri’s motion hearings.  Mr. Al-Nashiri’s lawyers challenge the admissibility of some evidence and the argument is made that, pursuant to the Military Commissions Act of 2009 rules (my emphasis added), the challenge is premature.  The defense asserts that if they do not make such a challenge now, once the judge has allowed the evidence in, the defense is precluded under the rules from raising a challenge to that evidence.  This issue is raised pursuant to the way the Military Commissions Act of 2009 rules operate as well as as a constitutional matter.  Judge Pohl asks whether, under the Military Commission Act of 2009 rule, if the evidence is admitted the judge can sua sponte (i.e. on the court’s initiative and not by a party) raise these concerns about the evidence and it is conceded by the parties that the judge can raise such points sua sponte

Now someone might find it perfectly fine that the judge can do this on his initiative, but there are two problems.  First, as a statutory matter the judge can raise this issue on his own, this is within the judge’s discretion and the judge may not exercise his discretion to raise the issue.  If the judge does not exercise his discretion to raise the issue the result is that before the admission, the defendant’s motion is premature and after the admission of the evidence the defendant is not able to challenge its admission.  If that is not a statutory Catch 22, I do not know what is.

But some out there might say “what about due process?” and that is where it gets even more interesting.  The defense in making its motions is arguing several Constitutional grounds at various points including due process as well as equal protection.  But, and this is very important to remember, we are at Guantanamo and while the Supreme Court in 2008 in Boumediene settled the fact that detainees at Guantanamo were entitled to habeas corpus review (more on that later), the Supreme Court did not settle what other aspects of the Constitution apply at Guantanamo.  This reality becomes painfully clear when Judge Pohl states his understanding that the rights of the detainees are statutory (meaning flowing from the Military Commissions Act of 2009 and other relevant Congressional acts). 

As noted by Professor Bobby Chesney, in his April 18, 2012 lawfareblog.com post “GTMO, Civil Suits, and Qualified Immunity: The Problematic Analysis in Hamad v. Gates” (http://www.lawfareblog.com/2012/04/gtmo-civil-suits-and-qualified-immunity-the-problematic-analysis-in-hamad-v-gates/), the extent of the Constitution’s application at Guantanamo beyond the Suspension Clause has not been settled.  And it does not appear to have been settled in the habeas litigation in the D.C. Circuit or in a Supreme Court decision in the post-Boumediene period.  The DC Circuit has distinguished Guantanamo from the Philippines and the Insular Cases fundamental rights jurisprudence at the early part of the 20th century.  I personally think that DC Circuit judges who limit Constitutional extension to Guantanamo who hang their analysis on the distinction of the de jure status of the Philippines being US is suspect.  In the early 1900’s, at the time of the Insular Cases, the US intention was to relinquish control of the Philippines and not to graft too much of our Constitutional and common law traditions on a then territory with a longstanding Spanish civil law tradition.  Yet, fundamental rights were said to apply there.  Contrast that with Guantanamo ( a territory with the de facto status by treaty of being subject to the long-term exclusive jurisdiction and control of the United States) where fundamental rights beyond the Suspension Clause are not clearly said to apply.  Such an approach truly raises form over substance that I think is problematic for a jurisdiction to adjudicate.  But those are my preferences.

Whatever my preferences, Professor Chesney notes very clearly in his analysis that:

Note the dates that are in issue.  Hamad was at Guantanamo from March 2003 until December 2007.  That is to say, he was transferred out of GTMO some seven months prior to the Supreme Court’s decision in Boumediene concluded that GTMO detainees are protected by the Constitution’s Suspension Clause.  Nevermind that Kennedy’s opinion in Boumediene pointedly does not confirm whether or not any other constitutional protections apply beyond the Suspension Clause, and the ongoing debates surrounding that question over the past four years.  Even if Boumediene were clear on the point, government officials could hardly be faulted for not anticipating that this fiercely contested litigation (which had broken strongly in the government’s favor at the Circuit Court level) would turn out that way in the end.   The idea that it was clear in 2006-2007 that the Fifth Amendment applied at GTMO—i.e., that Johnson v. Eisentrager did not control on this point—and that any reasonable person would have understood this at the time is simply preposterous.

The court’s response on this point?  It is brief.  Very brief.  The court simply cites the Supreme Court’s 2004 ruling in Rasul v. Bush, claiming based on it that “the Supreme Court specifically recognized a Guantanamo detainee’s right to constitutional protections as early as 2004” (slip op. at 8).  That is an astonishing misstatement; Rasul was, famously, a matter of statutory interpretation involving the federal habeas statute, not any constitutional claim.  True, Justice Stevens included a footnote in Rasul stating:

(this is a cite made by Prof. Chesney) Petitioners’ allegations–that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing–unquestionably describe “custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Cf. United States v. Verdugo-Urquidez,494 U.S. 259, 277—278 (1990) (Kennedy, J., concurring), and cases cited therein. (this is the end of the cite made by Prof. Chesney)

That bit of ambiguous dicta is an extremely thin thread from which to hang the claim that it was clearly established from 2004 onward that GTMO detainees had constitutional rights, particularly bearing in mind that the Suspension Clause issue alone would take another four years of litigaiton (including, along the way, a Circuit Court ruling rejecting such claims).  In any event, the Hamad court’s pincite to Rasul does not refer to this footnote in any event, but rather to the core statutory holding on access to habeas (i.e., it cites to page 481 of the opinion, not page 483 n. 15), suggesting that the Hamad court did not necessarily mean to rely on the footnote.

The court’s engagement with the substance of the alleged Fifth Amendment violation itself also is troubling.  First, it is not clear whether the court means to suggest merely that it would violate the Fifth Amendment to take more than two years to effectuate a transfer out of GTMO after an ARB determines that a person can be released, or more broadly that detention without criminal charge at GTMO is itself unconstitutional from the outset.  The latter position obviously would be incorrect, given the now sprawling body of habeas decisions affirming the legality of military detention in the abstract.  The former position is a much more interesting question, in contrast, but the premise seems flawed in this instance.

Mr. Al-Nashiri’s motion discussion points out that the lawyers are arguing their cases in a statutory space over which the extent, if any, of Constitutional protections for this defendant facing the death penalty is uncertain.  As an international lawyer, I might hope that US treaty obligations including and beyond Common Article 3 (Hamdan said that at least applied) in international humanitarian law and international human rights law might be seen to apply here and customary international  law requirements of a minimum standard of international justice might also be seen to apply here.  But, given the allergy to international law’s applicability of the United States internally (Medellin as an example) and the Military Commission Act of 2009 probably being seen as the implementing legislation for Common Article 3 etc, you see where we end up – back in a statutory space only.  Of course, it is elemental that the United States can not extract itself from international obligations through its internal law (Articles 26 (“Pacta Sunt Servanda” and 27 (“Internal Law and Observance of Treaties”), Vienna Convention on the Law of Treaties of 1969) even if we leave to the side the debates about Charming Betsey doctrine applicability (or lack thereof) in the DC Circuit (Judges Brown and Kavanaugh do not convince).  However, that rule of international law does not mean that the United States may not try to act inconsistent with international law or make interpretations of international law that might strain credulity in terms of good faith (more later).  We might also imagine an argument made contra to the Military Commissions Act of 2009 on the basis of a vested rights in treaties type analysis (Professor Jordan Paust has made this point looking at some of the Chinese Exclusion Cases of the late 19th Century), but to get there you have to go through that Constitution and – you see – the unresolved issue of the extent of the applicability of the Constitution at Guantanamo comes back to haunt us again.

From Mr. Al-Nashiri’s motions one might think there is no need to worry about these statutory, Constitutional and international law concerns because we have able counsel on both sides and a remarkable military judge in Judge Pohl who is presiding.  But, as we saw in Mr. Al-Nashiri’s case able counsel can only go so far under a legal regime.  Lawyers who argued cases under apartheid in South Africa worked endlessly to protect the rights of their non-white clients but were fighting within a constructed system that put limits on attacks on pass laws etc.  While not the same, the example hopefully gives one a sense of the task.

So then we come to Judge Pohl as the guarantor of the trial.  But, as we saw with Judge Allred in the Hamdan motions described above and Judge Pohl in the Majid Khan case, a military judge is likely going to do his or her best to avoid moving beyond the statute or currently settled Supreme Court and possibly Court of Military Commission Review precedent in making his decisions.  In such a charged atmosphere can we expect more than that from an Article I judge?  I think not.  I do not doubt that he will continue to find or attempt to find pragmatic solutions within his discretion in order to provide some modicum of due process that he thinks is consistent with the Military Commissions Act of 2009 statute and rules and as close as possible to his prior experience (experience such as the Abu Ghraib cases (Judge for Guantanamo 9/11 trials also handled Abu Ghraib abuse case, Mcclatchy, April 30, 2012   http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy)  (hat tip Benjamin Wittes)).  For Abu Ghraib, Judge Pohl was hearing those cases under both statutory (Uniform Code of Military Justice) and Constitutional law that was applicable to the soldiers charged under them.

Of course, Abu Ghraib was not the CIA black sites and, since Abu Ghraib broke, Bush phase high-level civilians (as recently as this week by Jose Rodriguez the former head of the CIA Counterterrorrism Center who destroyed the CIA videotapes of the interrogation of Abu Zubaydah and Al-Nashiri as “ugly visuals” and admits fully being involved in all aspects of the enhanced interrogation techniques including waterboarding and briefing Congress such as Congresswoman Pelosi on waterboarding in September 2002 – something which she denies) have been insisting that what was done at the CIA black sites was not torture and not the kind  of barbarism we saw in the pictures at Abu Ghraib.  Watching a program last night with Sean Hannity there was a whole panel including former Attorney General Michael Mukasey, Oliver North, Debra Burlingame (head of keepamericasafe.com and sister of one of the commecial pilots who died on 9/11), other former military who had experienced SERE training who all (with the exception of one woman at the back who spoke at the beginning once and thenkept her peace) assured ust hat, unlike Abu Ghraib, the CIA black site treatment including waterboarding was not torture (more on this in due course).

If what they are saying to distinguish the CIA black site treatment from the Abu Ghraid treatment is true, the significance of the Abu Ghraib experience of Judge Pohl would appear to not be substantial because the CIA black site treatment is supposed to not be torture and the Abu Ghraib cases were about detainee treatment.  The miiltary commissions in the Obama phase are not about detainee treatment by the defendants, but about law of war crimes alleged against the defendants that (with the exception of the Daniel Pearl killing) are not about mistreatment of detainees.  That Judge Pohl has been selected and his Abu Ghraib experience highlighted, however, might also be looked at as evidence of how the detainee treatment at the CIA black sites shapes these military commissions in at least the manner I have described occurred in the Obama phase Majid Khan and Al-Nashiri military commissions from earlier this year.  Again, it is not about the admissibility of evidence – just as that would not have been the case at the Abu Ghraib cases as there is no allegation the soldiers were abused or tortured by the United States – but rather about the impact of the abuse on the military commission.

Is there anything else to say about Judge Pohl?  There are two things that Mcclatchy noted that raise issues, for me at least.  I will address each of them one by one.

Omitted from Pohl’s terse court biography is that he was sworn in as a judge on May 19, 2000, after completing the Army’s “Military Judge Course” with perfect scores on his final exams and graded practical exercises. That makes him the longest serving judge currently in the U.S. military. His biography also does not mention that he’s been retained past his retirement date, Oct. 1, 2010, and serves in a special status that requires renewal each year.

 Whether Judge Pohl is active duty or is something else (he is not retired), he is subject to the Uniform Code of Military Justice.  An Article III district court judge hearing a case has life tenure and, unless called back to active duty, would not be subject to the Uniform Code of Military Justice.  Second, Judge Pohl is subject to renewal each year.  An Article III district court judge hearing a case has life tenure and holds his/her office during good behavior (Article III, Section I).  That life tenure is part of how we assure judicial independence.  I am less familiar with the military judges in the Uniform Code of Military Justice structure but I do know that the 1958 act was adopted precisely to address concerns with unlawful command influence.  Provisions of the Military Commissions Act of 2006 and 2009 address concerns about unlawful command influence.  The point that I raise is that given the one year renewal requirement, Judge Pohl is structurally in a further very different position from an Article III judge and as he is acting under the Military Commission Act of 2009 it is uncertain to what extent Uniform Code of Military Justice precedents on unlawful command influence apply in the military commissions space.

It is reported in the same article, to wit:

Judicial independence
Judge Pohl comes to the 9/11 case from the peculiar position of having been passed over for promotion to general and retained past retirement, meaning “he’s got nobody he has to please,” says retired Lt. Col. Victor M. Hansen, who spent 20 years as an Army lawyer and now teaches at New England Law School.

Read more here: http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy

I am not sure whether being passed over for promotion to general and retained past retirement and “he’s got nobody he has to please,” but at a minimum his one year renewal status is different from the “he’s got nobody he has to please” status of an Article III judge with life tenure and I am uncertain about the cabining provisions applicable in the military commissions as opposed to the court-martial space.

What we do know is that when he served on the Abu Ghraib cases it is reported that:

In the same hearing Pohl ordered numerous officers in the military chain of command, notably the Central Command’s chief, Army Gen. John Abizaid, to undergo questioning by defense lawyers trying to make the case that the guards were following policy by posing detainees for humiliating photos. (They weren’t and all the soldiers were convicted.)
“I was shocked,” Graveline said. “I was a captain at the time. I had to go back and tell my boss!”
The judge drew the line, however, when lawyers asked to question Defense Secretary Donald Rumsfeld and Stephen Carbone, his undersecretary for intelligence.

Pohl ruled the defense had not drawn a clear enough line to the political hierarchy to merit a subpoena. But, he told them, if they could make a better case for it later, he’d reconsider the request — not unlike what he’s been telling defense lawyers in the USS Cole case when their motions fail.

Read more here: http://www.mcclatchydc.com/2012/04/30/147110/judge-for-911-trials-at-guantanamo.html#storylink=cpy

The dilemma with the “clear enough line” to the political hierarchy is a dilemma that defense lawyers in these cases will face because the Executive controls all aspects as an Article I including military, intelligence, prosecutorial and justice arenas.  What is classified about these cases is no doubt substantial and what is classified to an extent that deprives the defense of information is a concern.  Subsequent to the court-martials in Abu-Ghraib evidence has been released in various settings providing more details about the manner in which interrogation techniques were put in place.  At a minimum there is the information in the November 20, 2008, Inquiry into the Treatment of Detainess in U.S. Custody http://documents.nytimes.com/report-by-the-senate-armed-services-committee-on-detainee-treatment which highlighted the reverse engineering of the SERE techniques as early as December 2001 and the migration of those techniques across the battlefield space including Iraq.  There are also the books by interrogators such as Ali Soufan formerly of the FBI, Jose Rodriguez formerly of the CIA, and Glenn Carle, formerly of the CIA which shed light on the highest levels of the political hierarchy involvement.  There are the Inspector General Reports of the CIA and of the Department of Justice.  The point is not to relitigate the courts-martial of the Abu Ghraib case but to raise the question whether there is information that is now classified and unavailable to the military commission defense teams just as there was information that was classified and unavailable to the Abu Ghraib defense teams that might permit the establishing of a “clear enough line.”

Another concern with the “clear enough line” approach is the extent to which this approach is similar to the “Beyond debate” language of the decision just handed down this week in the Padilla v/ Yoo case in which the 9th Circuit granted John Yoo qualified immunity for his role in the abusive treatment of Jose Padilla – an American citizen being so treated on US soil. 

“We assume without deciding that Padilla’s alleged treatment rose to the level of torture. That it was torture was not, however, “beyond debate” in 2001-03. There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques.”

http://www.ca9.uscourts.gov/datastore/opinions/2012/05/02/09-16478.pdf

That this kind of sleight of hand at high levels of getting a smart ambitious lawyer to write memos that are used to rationalize torture, that those positions foster reaction creating virulent debate, that such debate is used by a court to say the standard was not clear, that a US citizen is treated by his government like this, that the government  classification of him as an enemy combatant is used to further say all this is too unclear, and that these executive manipulations are allowed to have the effect of insulating those same and other higher up executive officials from civil suit by an American citizen subjected to this kind of treatment is troubling.  In this approach to an American citizen on American soil classified as an enemy combatant and an Article III court operating with all that independence, as noted by Professor Jordan Paust “no attention to the full set of cases that had already recognized certain types of interrogation are torture or the U.S. Country Reports on the human rights records of other states, etc. [was made in the decision] Compare cases, Reports, etc. in Jordan Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, Valparaiso University Law Review, Vol. 43, p. 1535, 2009 at http://ssrn.com/abstract=1331159 

While one might say that these alien enemy combatants in military commissions come to a process with different standing from an American citizen pursuing civil remedies, the point is that one doubts that the standards would be higher for a non-citizen and non-resident alien declared an enemy combatant than these standards applied to an American citizen.  That the Ninth Circuit said it was applying very recent Supreme Court and 4th Circuit precedent was particularly troubling as was noted by the New York Times, to wit:

Until a year ago, the law gave officials so-called qualified immunity to shield them when they performed responsibly. In holding them accountable for exercising power irresponsibly, it required simply that a reasonable person would have known about the right he violated. Last May, however, the Supreme Court ruled that “existing precedent” must put any question about such a right “beyond debate.”

That is an unworkable standard and the Ninth Circuit decision shows why. The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage. (Beyond Debate, New York Times Editorial, May 3, 2012).

(I warned as much back in 2008, if not more, in my article Benjamin G. Davis, Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment, 23 St. John’s J. Legal Commentary 503 (2008) where I predicted this kind of trick or ploy.  As Professor Jordan Paust has note, this tricksterism is also done in law review articles where there is a fairly standard view of a topic and a bright person takes an exotic position and that is argued to create a controversy that, in the US foreign relations law space (and to some extent in  the internatinal law space), is used to say the law is unsettled (will speak to this in further sections on torture, targeting with drones, and detention in concepts such as “unable and unwilling.”  Have already done this to some extent also with regard to the torture memos some years ago – The Yoo Torture Memo: Break the Silence of the Lambs?  (April 8, 2008) at http://jurist.law.pitt.edu/forumy/2008/04/yoo-torture-memo-break-silence-of-lambs.php). )

One might say that the standard for the alien enemy combatant facing the death penalty or criminal penalties would be equal to that of the American citizen enemy combatant seeking civil relief, but we must remember that the rights here are only statutory under the Military Commission Act of 2009, unclear at a Constitutional level, unlikely to include invoking international  law, and little tested, if at all.  How will a “clear enough” standard apply in these military commissions?  I do not know.

All of these concerns that I raise in this section on Military Commissions bring us back to the question of why we even have this third iteration of a third rate process.  For me and many others, the reason that the military commissions were created was to provide for a process that would assure convictions of high-value detainees that were tortured or subjected to cruel inhuman and degrading treatment at the behest of the Executive and with the complicity of the key figures at the time in both Houses of Congress.  The hope of the Bush Executive and Congress and the Obama Executive and Congress is to  keep the torture away from the eyes of the world and Americans and the effort continues to be to avoid high-level accountability in terms of prosecution of high-level civilians for what actually transpired.  The Courts have played a complex role in this space. As noted above, tapes of waterboarding were destroyed by Jose Rodriguez, formerly of the CIA.  What is allowed to be seen is only what the Executive wants allowed to be seen or ordered to be released after arduous battles in Court by parties subject to the treatment and their public interest lawyers.  I find it perverse that in the week in which he who destroyed videotapes with ugly visuals with no subsequent criminal charges explains his actions,  videos of Salim Hamdan being interrogated in Afghanistan are freely given to the press yesterday by the Department of Defense so we can see what the interrogations looked like back in Afghanistan.  I may be the only person who sees that irony from the Bush and Obama phases but it is deeply troubling about just how sufficient the provision of information to the defense has been. 

Brig Gen Martins spoke to this yesterday on the KSM and 9/11 case that started this morning on defense preparations in stating:

Good evening.  I would like to address two topics that have attracted commentary not because of any specific proceedings, but in light of the use of military commissions generally.  First, some have suggested that detainees have not been given adequate opportunity to form an effective relationship with legal counsel and to prepare a defense.  To these suggestions and complaints—which we do not ignore, which are a healthy byproduct of our adversarial system, and which are all examined carefully—we offer that every detainee at Guantanamo has ample opportunity to get the help of lawyers, and there are notable examples of robust and functional attorney-client relationships being formed and of zealous, effective representation being provided.  A mentally competent accused who has been properly advised of his rights to counsel cannot be forced in this system, in the federal civilian system, and in every respected system of justice to be represented by an attorney.  You will doubtless hear more complaints about resourcing and the formation of an effective attorney-client relationship from dutiful defense counsel seeking to fulfill their professional obligations.   When you do, I trust that you will exercise your own professional obligations to seek out additional perspectives, including by reading government submissions to the court on the matter and by reviewing the facts about resources provided, counsel and investigative hours billed and paid, numbers of flights to Guantanamo available and not taken, opportunities for communication with client through a privilege team, and similar empirical data.  Such complaints will of course be taken up methodically by the judge when and as raised, but you have the opportunity yourself, from the web postings, to view the data and come to a conclusion about whether fairness is being achieved or denied.  And our Article III appellate courts can also view the same facts, as well as a verbatim record of the matter if any error is later alleged on appeal. http://www.lawfareblog.com/2012/05/live-blogging-tomorrows-arraignment-in-united-states-v-ksm-et-al/#more-7092

Whatever the process forward in this first part of my essay, I have tried to outline to the reader as part of what I see as my duty as an American citizen my concerns about this third class process for foreigners even in its newest version.  I have attempted to give you not only what is seen but the “evidence of things not seen” to quote a great writer.  My goal is to allow us as Americans to look ourselves in the eye and determine if this is what we truly are.  I still have other things to say about the relation between the American laws of war and international laws of war on the various substantive crimes that are in the Military Commission Act of 2009.  Professor Stephen Vladeck, Benjamin Wittes, Professor Kevin Jon Heller, Professor Jordan Paust, and Haridimos Thravalos and many others have written on these things and I want to add to that conversation.  I will stop now and get some lunch by ending with the following.

It is often stated that there is American Exceptionalism in the world and, in this time of Presidential elections, candidates of both parties will speak to that special role in the world of the United States.  I know people in other countries also think of their specialness (such as the French where I lived for 17 years, but also the Swiss, the Nigerians, the English, etc).  Still it is without a doubt that the United States has a unique role in the world as compared to these other countries.  It does seem to me, therefore, that in having such American Exceptionalism that it is incumbent on ordinary Americans like folks like me in Toledo, Ohio to reflect on what my country does in the world and to assert our modes sparkle of sovereignty derived from our citizenship to make sure that our leaders are held accountable for what they do. No doubt this is considered naive – truly I am the powerless – yet, at least for me, I take some succor from the fact that I live and work in Toledo, Ohio and every four years those seeking the highest office come here to Toledo seeking the vote of us and other Ohioans because we are a swing state among swing states (like a swing vote on the Supreme Court).  Foreigners may not know this but no  Republican wins presidential office without winning Ohio.  And Toledo is the center of the universe – ground zero so to speak – for these current presidential elections in which the candidates are in a dead heat. 

Whatever the results of those elections, in this part on military commissions and in further parts on the topics of Torture, Detention, and Drones that I hope to write soon while I am also in this period  of grading exams, completing articles, preparing to teach a summer course on public international law, and continuing writing and following what is going on in my world.

Or is it that we are what we have become.