March 16, 2011

The Obama administration's recent announcement that it would restart military commission proceedings at Guantanamo Bay is a huge disappointment to anyone who values a commitment to due process and the rule of law. The military commissions are a second tier, flawed system of justice that will only produce verdicts highly vulnerable to appellate challenge.

But nearly two years ago, during a speech at the National Archives, Obama made a similar announcement. In May 2009, after already pledging to close Guantanamo within one year of taking office, he announced he would use both military commissions and civilian courts to prosecute terrorism suspects. The decision to use the military commission system, even if only in part, was bad then and it is bad now for a variety of reasons. But it is not new. What is new is the ease with which the administration is willing to hide behind recent congressional restrictions as an excuse for the failure to close Guantanamo and bring more terrorism suspects to justice.

True, congressional funding restrictions imposed in December of last year were reckless and irresponsible. They forbid the administration from using Department of Defense (DOD) funds to transfer Guantanamo detainees to the US, even for prosecution. They also place serious hurdles on the transfer of detainees to home or third countries even if the administration does not intend to prosecute them. About half of the 172 detainees currently in Guantanamo are in this latter category, many having already been detained for more than eight years without charge.

But for the administration to place too much blame on congressional restrictions would be entirely disingenuous. Those restrictions only passed at the very end of last year and without the White House mounting much of a fight against them. Although Attorney General Eric Holder issued a statement opposing them before they were adopted, no other administration official went out on any real public offensive to prevent passage or alter the debate. While White House officials responded to questions by reiterating the party line - that Obama "remains committed" to closing Guantanamo - they failed to make much of an affirmative case for why it was important to bring terrorist suspects to justice in the time-tested federal court system.

Prior to the restrictions being imposed, the administration had nearly two years to bring charges against those it claimed it wanted to try in US federal courts. In fact, it still has the ability to bring these charges. The restrictions only bar the use of DOD funds. The administration can still use Department of Justice or Homeland Security funds for the same purpose. The restrictions also expire at the end of September so Obama should be laying the political groundwork to prevent their extension now.

It is true that the administration faced fierce opposition at times to holding civilian trials for Guantanamo detainees. When Attorney General Holder announced in November 2009 that he would hold trials for the 9/11 suspects in New York federal court, some New York officials and residents raised objections based on purported security and cost concerns. But rather than address these concerns head on in public, the administration quietly backed off from its position. It never displayed any real willingness to make its case in the political arena for why civilian trials make national security sense.

And make national security sense they do. The Guantanamo-based military commissions are indelibly tainted by the Bush administration's blatant disregard for the rule of law, making them a gift to al Qaeda recruiters and fodder for anti-Americanism. US Gen. David H. Petraeus, among others, has acknowledged this on numerous occasions. During one Fox News interview for example he said, "Gitmo has caused us problems, there's no question about it. I oversee a region in which the existence of Gitmo has been used by the enemy against us."

At enormous taxpayer expense during the nine years since they were created, the military commissions at Guantanamo have produced only six convictions, four by plea bargain. The proceedings have been marred by procedural problems, the use of evidence obtained by coercion, inconsistent application of varying rules of evidence, poor translation, and lack of public access. The changes made to the commission rules in 2009 do not fix their fundamental flaws that deny defendants basic due process. Any verdict obtained in them will be vulnerable to appellate review, leaving no finality of justice.

Federal courts remain the only legitimate and viable means of prosecuting terrorism suspects. They, by contrast, have prosecuted hundreds of terrorism suspects during the same period, among them the convicted 9/11 conspirator Zacarias Moussaoui and the convicted "shoe bomber," Richard Reid. Unlike the military commissions, federal courts can look to 200 years of binding precedent for guidance and have well-established rules of evidence and procedures.

The 9/11 case is already nine years old. As time passes evidence grows stale and witnesses become unavailable. For a case of this importance, it is irresponsible to waste any significant amount of time in bringing defendants to justice.

Shortly after Obama took office, he met with several family members of 9/11 victims. During meetings he reportedly promised them "swift and certain" justice. Obama still has the option of using non-DOD funds to try terrorism suspects in federal court. Before Congress imposes further restrictions, which it has threatened to do, he can and should move promptly, to make this happen.