Guantanamo Commissions Compromise Making Waves

     WASHINGTON (CN) – Eight years ago in February, Khalid Sheikh Mohammad, the alleged mastermind of the 9/11 terrorist attacks, was officially charged with war crimes and murder.
     Three attempted trials and countless motions later, Mohammad is still years away from a verdict.
     So are four other men accused of conspiring to conduct the attacks.
     James Connell, who represents Ammar al Baluchi in the case, recently said the trial could begin in 2019, though attorneys on other teams are far less optimistic about the potential start date.
     The reasons for the delays are numerous. The 9/11 case alone has been gummed up with in-court arguments over the government’s intrusion into attorney-client privilege, new allegations of torture from detainees, refusals by the accused to let female guards touch them during detainee transfers, and a host of other problems.
     That Guantanamo Bay, where hearings in the cases are held, sits on the southeast corner of Cuba doesn’t help matters. Just to get to the courtroom, attorneys and onlookers must pack onto a plane from the Washington, D.C., area for 3 1/2 hours.
     For those who would like to see the cases at Guantanamo move faster, the Military Commissions that hear them are another common target.
     The commissions, most recently codified in the Military Commissions Act of 2009, are a largely untested version of a military tribunal that must follow certain rules meant to protect classified information that critics say bog down the proceedings.
     A Los Angeles-based foreign affairs group called the Pacific Council on International Policy sought to fix these problems in February with a seemingly simple proposal: replace the military judge presiding over the commissions with a sitting or retired federal judge.
     With their demeanor and courtroom control, the group reasoned, federal judges could maintain a tighter grip on the trial schedule than their military counterparts have, moving the stalled military commissions back into gear.
     The idea has caught the attention of at least one member of Congress, who sees it as potential way to move the interminably long proceedings along.
     “It would have the merit of having a judge full time in Guantanamo that can keep a close rein on the trial schedule,” said U.S. Rep. Adam Schiff, a California Democrat who has started to “explore” the Pacific Council’s idea. “That may be possible for a military judge to do as well, but that has not been the case so far, so I think we should explore alternatives.”
     But some experts question just how many of the military commissions’ problems come from the judges who preside over them. The “inherently problematic” commissions structure would give even the most experienced judge problems sticking to a strict timeline, said Laura Pitter, senior national security counsel at Human Rights Watch.
     Pitter is among those who believe the best way to save the Guantanamo trials is to eliminate the commissions and move the cases to a federal court.
     But Karen Greenberg, director of the Center on National Security at Fordham University, says bringing in federal judges could be a small, but important step toward justice.
     “Anything that jostles the system … and does so in a way that’s respectful of the rule of law and procedures that we already have in hand is important,” said Greenberg, who is the author of “The Least Worst Place: Guantanamo’s First 100 Days.” “It’s really important.”
     The Pacific Council’s proposal did not come out of thin air. In its “Up to Speed” report, the group says its “bipartisan group” of lawyers spent 90 total days at Guantanamo watching the proceedings before coming up with their solution, which it casts as a “common-sense” solution to the never-ending delays that plague the commissions.
     “While we recognize that the intricacies of these cases and the particularities of the military codes governing them resist an easy solution, we believe that experienced current or retired U.S. district judges – assigned full-time to Guantanamo – could apply case-management techniques that would go a long way toward clearing the logistical and procedural hurdles that have stymied the military’s commuter judges,” the group wrote in its report.
     Military Commissions are currently hearing the cases of seven detainees held at Guantanamo. In addition to the accused 9/11 conspirators, accused al-Qaida senior member Abd al Hadi al-Iraqi and alleged USS Cole bombing mastermind Abd al-Rahim al-Nashiri also are set to stand trial before the commission.
     The Pacific Council predicts numerous benefits will arise in the transition from military to federal judges. For starters, federal judges would not “tolerate” the delays that so often crop up in the Military Commissions proceedings, and would have the “gravitas” to ensure the parties keep their schedule, the group says.
     Crediting these claims, Greenberg noted that many federal court judges, especially in the Eastern District of Virginia and Southern District of New York, have tried terrorism cases with rousing success. The bizarre disruptions and delays that have marred the Military Commissions would not rattle these experienced judges, Greenberg said.
     “They’ve seen everything,” she said. “From courtroom antics to evidence that was produced by torture to highly sensitive information that has to be handled carefully and sometimes kept out of the hands of participants. I mean, they just have seen it all. Exercising a degree of control over the court process that we haven’t yet seen.”
     Federal judges would be more prepared on substantive issues as well, especially those who have handled terrorism cases in the past. The complex rules of evidence and classification that can make the Military Commissions seem hopelessly complicated would not be anything new, Greenberg said.
     “Basically, I think they will finesse some of the complexities,” Greenberg said. “I think they will speak in extremely authoritative tones about the pace that this needs to go forward at.”
     To support the plan, the Pacific Council also points to the relatively strong history of the government winning convictions in federal courts. From 2001 to 2011, 87 percent of terror-related cases tried in federal court resulted in a conviction, according to study from the Center on Law and Security at New York University School of Law.
     The commissions meanwhile returned just eight convictions, four of which have been overturned.
     Schiff said the move from military to federal judges, if he decides to pursue it, would come in the form of a change to the Military Commissions Act. He has “just begun” the process of evaluating the idea and has spoken to the Pacific Council as well as people with experience in the military court system to evaluate its merits.

     Getting deeply divided members of Congress to sign on would pose its own complications, but Schiff said the country needs a solution.
     “I think everyone is dissatisfied with the Guantanamo process,” Schiff said. “The challenge would be, you have some who want to make sure this is exclusively run by the military, you have others who want to move this exclusively into Article Three courts. And to the degree you use Article Three judges, some may resist it if they think it’s moving away from military tribunals, others may resist it if they think it facilitates keeping the tribunals open and not moving exclusively to Article Three courts. So there are a lot of difficult tracks to run on a proposal like this.”
     Other, smaller proposals the Pacific Council put forward in the report might also have a chance for legislative action.
     During the most recent round of hearings for the five men accused of plotting the 9/11 terrorist attacks, prosecutors pressed the Military Commission to take in-court depositions from some of the more elderly people who lost family members in the attacks.
     The request drew opposition from defense teams who argued that potential members of the commissions’ version of a jury would be influenced by the airing of victim-impact statements meant to be used in the pre-sentencing phase of the trial.
     Schiff said he plans to use the time remaining this year to push for a legislative way to preserve the family members’ statements, which was one of four smaller proposals the Pacific Council mentioned in its report.
     “I would imagine that it’s something that the court will have to opine on, but it seems to me that there’s no reason not to preserve the testimony, Schiff said. “And given the indeterminate time period it has taken to bring many of these suspects to trial, I think we ought to preserve the testimony that we can, and we ought to allow some of the family members of victims to get some closure.”
     While these changes have more widespread appeal, some experts are skeptical a move to federal judges would have much impact on the proceedings at Guantanamo.
     J. Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, said the military commissions have far greater problems than the person on the bench.
     Dixon’s clients at Guantanamo include Majid Khan, the only known U.S. citizen held at the facility. The attorney warned against simply trying to get the fastest verdict possible, saying speed is not necessarily an emblem of justice.
     “Federal judges certainly have a great deal of experience handling complex criminal cases, including terrorism cases,” Dixon said. “But the goal of the Military Commissions should not be greater speed. It should be fairness and transparency. And replacing a military judge with a federal district court judge or a retired federal district court judge is not going to ensure fairness and transparency.”
     Katherine Hawkins, senior counsel with the Constitution Project, appreciated that the Pacific Council pointed out “some of the problems” with the Military Commissions process.
     But she said simply replacing military judges would be another half-measure that would not correct the fundamental problems with the system.
     “With this, with President Obama’s legislative proposals that Congress actually did not take up, we see efforts to tinker around the edges, and in some cases possibly make things worse, and there’s not a willingness to deal with the fundamental problems,” Hawkins said.
     Greenberg disagreed. Federal judges have the experience and demeanor to have an impact that would sweep well beyond the simple change of who is sitting behind the bench, she said.
     “I think that any changeup is a forward movement at this point,” Greenberg said. “And any incremental – even if it looks cosmetic at the outside – any incremental step toward bringing these commissions closer to the federal court process is a positive step. We don’t know what else will change in the wake of having those judges there. The authority with which they will speak when they think things are untenable or there’s something wrong inside the system will be tremendous.”
     In addition to trial-speediness concerns, the Pacific Council also says having federal judges on the bench would help assuage fears of improper influence from the military.
     But Dixon said military judges have been good about “demonstrating their independence,” specifically citing Judge Col. Vance Spath’s decision to pause Nashiri’s case after the government improperly tried to speed up the proceedings.
     “I don’t have any concerns about any military judge that I have appeared in front of at Guantanamo,” he said.
     Mixed up in concerns about judicial independence are questions of which judges should receive appointment by the Convening Authority, the military official who oversees the Military Commissions. Also uncertain is how and whether the judges would have to move to Guantanamo.
     For Hawkins, having a military official appoint the new judge would do little to beat back the perception of bias that already hangs over the proceedings. She offered the Foreign Intelligence Surveillance Court as a cautionary tale for what could happen if the government appoints a deferential judge to the bench.
     Greenberg suggested the Convening Authority could use a pool of judges from courts that have already tried many terror cases and assign judges randomly from that pool. Greenberg predicted judges would race to the bench – especially for the 9/11 case – eager to prove they could handle it after seeing it ripped away in 2011.
     “I think a lot of judges would like to try this case,” Greenberg said.
     Experts agree that the problems with the Military Commissions go far beyond the bench. While Greenberg sees any progress away from the current system as improvement, some say changing the judge will be of little help until those fundamental problems are addressed.
     “It’s not just judges that are going to improve the system, it’s the entire system itself,” Pitter said. “It should be scrapped because these cases can all be tried in federal court.”
     A trial in federal court seems especially unlikely, however, after the Senate passed a defense-spending authorization bill Tuesday that explicitly prevents Guantanamo detainees from being moved to the United States.
     Faced with the reality of the endurance of the Military Commissions, Schiff took heart in the idea of improving the existing system.
     “It would be my hope that this would be a short-term solution in any event because I would like to see the shutdown of the facility at Guantanamo,” Schiff said. “But as long as it exists, as long as we’re making use of that process, we’re going to have to explore more substantial changes to make it functional.”

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