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Missing the Mark on Military Commissions

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Unread 01.26.12, 11:57 AM
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Missing the Mark on Military Commissions

On 01.26.12 08:56 AM posted by Cully Stimson

Last week, I again had the privilege of traveling to Guantanamo Bay to observe a military commission proceeding as an invited representative of a non-governmental organization (NGO), my employer, The Heritage Foundation.* And once again, I was disappointed by the lack of informed commentary from my fellow NGO representatives.** Perhaps the most disappointingly slanted account of the proceedings was published by Human Rights Watch’s Laura Pitter in Salon and entitled “Guantanamo’s System of Injustice.”** Pitter’s central theme is that there are “vast differences” between federal court and military commissions and those differences prove that military commissions are unfair.* Not only does her article do little to prove the thesis, but it’s riddled with errors large and small.* In the spirit of public service, I figured I’d correct a few.

Let’s start with simple facts.* She describes the courtroom as “hanger-like,” when in fact the courtroom and structure is a modern, rather plain-looking rectangular building not unlike thousands that appear in industrial parks across America.* Notably, a World War II-era aircraft hanger sits 200 yards or so from courthouse, called the Expeditionary Legal Compound.* It’s a different building, I promise.

Even tiny errors set the tone wrong.* Pitter describes the sound-proof glass that separates the in-court participants from observers as “bulletproof” glass.* It isn’t.* The glass is sound-proof, and it was modeled after similar features in other courtrooms , including one used in international tribunals in Europe.* Indeed, the whole courtroom was carefully designed to accommodate the discussion of classified information during the proceedings and needs of the free press.* There’s a 40-second delay in sound transmitted into the courtroom, an intelligent accommodation of free press, a fair trial, and national security interests.

Now let’s delve into the law.* Pitter bemoans the lack of any “real right to a speedy trial” in military commissions, boldly asserting that al Nishiri’s nine year delay from apprehension to trial would “never occur in federal court.”* Yet there are numerous cases that specifically contradict that assertion, not the least of which is United States v. Ghailani, which took over five years to come to trial in federal court.* In Ghailani, federal district court Judge Lewis A. Kaplan denied the defendant’s motion to dismiss the indictment for lack of a speedy trial.

In fact, defendants in military commissions do indeed have a speedy trial right.* That right, modeled after the same rule in courts-martial, is contained within Rule for Military Commission 707, which directs that within 30 days of service of charges upon the accused, the accused shall be brought to trial (arraigned), and within 120 days of service of the charges the trial on the merits shall begin.* Of course, just like in courts-martial, or federal or state court under speedy trial rules applicable in those forums, including the Federal Speedy Trial Act, the defense may request a delay, and that delay stops the 120-day speedy trial clock.* Also note that the 120-day clock may well be speedier than a domestic criminal’s constitutional right to a speedy trial under the 6th Amendment.

Next, Pitter claims that “nearly every substantive issue litigated in Guantanamo this week would never have arisen in federal court.”* For example, a “warden wouldn’t read clearly marked legal mail” between attorney and alleged terrorist client, citing the defense motion to prevent the government from a plain view review of the confidential mail sent by the attorney to the client at Guantanamo.* Yet in the proceeding we both attended , counsel for both sides were citing cases where similar issues arose in the past*.*.*.*in federal court.* In fact, on the first day in court, there was a revealing exchange between Judge Pohl and Lieutenant Commander Reyes, the defense counsel.* The judge’s questioning of Reyes revealed the implausibility of ANY guard or privilege team member—-when opening a packet of attorney communications to a client in the presence of the attorney or the detainee to inspect for paperclips/staples/binder clips (referred to as “physical contraband”) and proper privilege labels—simply allowing to be passed to a detainee who lacks a security clearance a document with “TOP SECRET” classification markings in plain view.* See the transcript of the exchange here, at pages 396-400.

There is another aspect of the wardens-don’t-do-that argument that is worth thinking about.* Had al Nishiri or Khalid Sheik Mohammed (KSM, the architect of 9/11) been tried in federal court, federal jail officials would most certainly have screened their mail in virtually the same way they are proposing to do at Gitmo.* Federal jail officials would not reject the security recommendations of the intelligence community, law enforcement and others regarding the need to keep classified materials out of the hands of known terrorist detainees.

Federal officials, whether they are military contractors at Gitmo or jail officials in New York City, are charged with protecting classified information from getting into the hands of dangerous terrorists.* Each screen mail for contraband, physical or otherwise, as that is their duty.* Had those cases come to federal court, federal prison officials may not utilize a privilege review team like they do at Gitmo, but make no mistake about it, they would screen the mail for physical and plain view contraband.* To imply or suggest otherwise is simply incorrect.

Pitter also takes issue with the military commission procedures requiring the defense to notify the government of its request for expert witnesses, on the ground that this forces the defense to reveal “its case theory and litigation strategy.”** But that procedure is taken directly from regular courts-martial procedures. In a court-martial, by statute (see Rule 703(d), “Employment of Expert Witnesses”), the defense is required to submit its request for expert witnesses to the prosecution, explaining not only who each expert is, but why he is relevant, and provide for an approximate cost for the expert.* The reason for this rule is innocent enough: most defendants in the military justice system cannot afford necessary expert witnesses, and the government is required to pay for relevant and necessary expert witnesses.* As a practical matter, the government must know beforehand who the proposed expert is, why he is relevant, and approximately how much it’ll cost.

What Pitter left unmentioned is the fact that the prosecution joined (see “Government Response to Renewed Defense Motion to Allow In Camera, Ex Parte Requests for Expert Assistance with Limited Notice to Opposing Party in Compliance with R.M.C. Rule 703(d)) the defense motion, and stated in court that it had no desire to read details of defense expert requests.* The judge ruled that, contrary to regular practice, the defense expert witness requests could contain minimal information so as to preserve defense theories.

Over half of the two days in court this past week dealt with the issue of the security and sanctity of defense counsel communications.* The defense team, superbly represented by a civilian learned counsel named Richard Kammen, asked the judge to order the government to create a secure web domain, called an “enclave.”* Some members of the defense team (e.g., JAGs) are employed by the government, and as such they use a Department of Defense government computer system for most if not all of their work product.* The defense team asserted that an enclave was necessary because it provided, in their opinion, the highest possible protection against possible intrusion into their emails and documents.

The government countered by agreeing with the defense need for secure and confidential communications, but argued that encryption was more secure than the creation of an enclave.* In support , the government put a computer expert on the stand who was familiar with the Department of Defense computer system.* That expert opined that encryption was more secure .* At no point during the two-day hearing was there a shred of evidence that anyone, including government, was reading defense emails or documents.* The defense did not offer any expert testimony of its own to prove its assertion, although it had the right to do so.

Yet for some reason, Pitter writes that the “Defense Department has been reading all of the defense attorney’s email.”* It isn’t true—or, at least, nobody’s alleged it yet.

That takes us to the Pitter’s discussion of classified information, and how it is used in court.* She states that the “classified nature of the evidence means the defense only gets summaries of parts the prosecution deems relevant and that the judge approves.”* That is correct, but fails to mention is also equally true in federal court under the same procedures.

Arguably the crux of her criticism is the inability of the defense to ask the judge to reconsider (i.e., re-open) the unclassified summary of the original classified document.* She complains that “a request by the defense to challenge the accuracy of the [classified] summaries was denied.”* The not-so-subtle suggestion to the reader is that the system is rigged and unfair.

But Congress, in codifying the state of the law as it related to the treatment of classified information in the Military Commissions Act of 2009, specifically rejected motions to reconsider.* Thus, the judge denied the motion for reconsideration because federal law prohibits motions for reconsideration.

To press her point, Pitter states that “civilian judges recognize that the parties should be able to challenge summaries, and may do so with a motion to reconsider.”* But, in reality, motions for reconsideration of classified summaries are exceptionally rare in federal court.* So rare, indeed, that the parties only found one case in which a federal judge granted a motion for reconsideration.* And that defendant, Scooter Libby, was an American who held a security clearance and did not pose a national security risk to the United States.

The fact is that the classified information rules applicable to military commissions today are virtually identical to those in federal court.* Congress, in crafting the rules, did not create a new mechanism for discovery beyond those already applicable to military commissions and federal court, like Federal Rule of Criminal Procedure 16 and judicial precedents like Brady and Giglio, and *statutory rules such as the Jencks Act. This is because although the discovery process is intended to ensure the criminally accused can prepare adequately for trial, the government—which has custody of much national security and private citizen data—cannot simply throw open its files.* Again, our criminal trial processes must balance important public interests, and Pitter seems to ignore this.

Left out of the article was the fact that the government, in an effort to assist the court and defense in understanding the actual rules applicable to classified evidence, informed the tribunal that defense counsel is free to request additional discovery through the normal discovery procedures.* If that discovery request pertained to previously-provided unclassified summaries of classified information, noted the prosecutor, the government would re-double its efforts to scrub all information in its possession so as to ensure the fairness of the proceedings.* This is exactly what would happen in federal court.

According to Pitter, the government “pressed for trial to begin on March 3.”* That is simply untrue.* As discussed above, in regular courts-martial and military commissions, the government has 120 days to bring the accused to trial, absent allowable delay.* Typically, in complicated cases like this one, the defense asks for and is granted ample continuances in order to prepare for trial.* In this case, the government has not opposed any reasonable defense delays, and almost everyone in the courtroom knew that the March 3rd date was simply the 120th day, not the actual trial date.* Everyone, including the government, expects that the defense will understandably ask for multiple continuances.* The judge will grant those continuances, and the case probably won’t be tried for years.

Finally, in response to a substantive critique of the article by Benjamin Wittes, Pitter re-hashes many of her original points, to no great effect.* A couple of her rebuttal points, however, demand further response.

She opines that the “physical layout and access to the courthouse” at Guantanamo limits “public scrutiny” of the trials.* She calls the closed circuit television (CCTV) hookups in the United States—which allow anyone to watch the proceedings and touted by the government as proof of transparency—a “red herring.”* Those watching via CCTV do not “experience the trial the way they would if they walked into a federal court to observe it” Pitter opines.* Sure enough, Guantanamo is not in the United States, and is not the same experience as watching a trial in a fortified federal courthouse.

Federal trials, however, are rarely broadcast via CCTV.* Thus, trials at Guantanamo arguably offer more access to anyone who wants to watch the trial.* At one CCTV site (Ft. Meade, Maryland) the government allowed reporters and most notably bloggers to live-blog the proceedings, in real time.* That does not happen in federal court.

Then there is the criticism of the use of hearsay in military commissions: “admissibility of hearsay in military commissions but not in federal court is a difference between the two systems that has had and will continue to have an enormous impact on the ability of the defendants to challenge evidence against them.”

But there are literally dozens of exceptions to the rule against hearsay in federal court, resulting in all manner of testimony getting before the jury from witnesses other than the actual speaker.* And hearsay is routinely used in international tribunals by both the government and the defense, and the defense may use hearsay evidence in military commissions.

She warns that “evidence obtained by torture might be admitted,” failing to inform the reader that one of the key reforms in the 2009 act was to specifically reject the admission of evidence adduced by torture, or cruel, inhuman, or degrading treatment.

At the end , Pitter briefly touches on a topic that merits a thoughtful and informed discussion.* The “voluntariness test” applicable to a defendant’s statements do not, in her opinion, apply to statements by someone other than the accused.* Whether that proves to be true in practice, is an open question, as there have only been two trials before military commissions, and they took place before the 2009 reforms.

Finally, a broader point.* Despite her mistakes, Pitter was actually one of the more experienced of the NGO representatives who attended proceedings this time around.* Of the ten NGO representatives who attended last week, seven represented liberal organizations.* Not one of the seven representatives had ever served in the military, served as a federal, state or local prosecutor, served as a judge, or even as a federal public defender.* Worse still, none had ever attended a regular court-martial.* Military commissions’ procedures and rules of evidence come from court-martial rules (See Military Commissions Act of 2009 (MCA 2009), see section 949a), and court-martial rules of evidence are taken, almost verbatim, from the Federal Rules of Evidence.* These observers had no relevant real-world experience, and thus no frame of reference whatsoever upon which to gauge the fairness of the proceedings.

If we’re going to have an informed public debate on trial by military commission, organizations that are seeking to reform the process will at least have to send knowledgeable staff to take in the proceedings.* Today, with one side of the debate represented by eager young know-nothings, intelligent discussion is drowned out by misconceptions and mistakes.* Doing anything more than issuing corrections seems almost pointless.

Federal courts and reformed military commissions are lawful and powerful instruments of justice and national security available to the executive branch.* There are slight differences between the two systems, and very good reasons for those differences.* Each has its strengths.* Whether military commissions will ever live up to their potential remains to be seen.* But a healthy, substantive and informed public debate about the use of military commissions for certain terrorism cases can only happen through a factual, honest, and informed dialogue.

Charles D. Stimson is a Senior Legal Fellow at the Heritage Foundation and former Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007).* He also served as a local, state, federal, and military prosecutor and defense counsel, adjunct law professor, and currently is a Commander in the United States Navy JAG Corps (reserves) and sits as a military trial judge.

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