• Executive Order on Ensuring Lawful Interrogation
  Revoking President Bush’s Executive Order 13440 that interpreted Common Article 3 of the Geneva Conventions as applied by the Central Intelligence Agency (CIA). The Order also prohibits reliance on any government legal advice on interrogation issued during the Bush Administration after the 9/11 attacks. Thus, agencies cannot rely on the torture memos of 2002-2003, wherein the Department of Justice told the U.S. military that interrogation techniques were lawful as long as they did not cause “death, organ failure or permanent damage.”
• Executive Order on Review of Detention Policy Options
  Creating a special task force — the Guantanamo Detainee Review Task Force — to review the lawful options “with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” The task force is required to report its findings to the President within 180 days (by July 21, 2009).
• Executive Order on Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities
  Calling for a factual and legal review of the status and disposition options for an unspecified number of current detainees at Guantanamo. The Order also requires the closure of Guantanamo “as soon as practicable, and no later than 1 year from the date of this order” (by Jan. 21, 2010).
• Presidential Memorandum on Review of the Detention of Ali Saleh Kahlah al-Marri
  Requiring the Attorney General to review the case of Ali Saleh Kahlah al-Marri, the only enemy combatant being held within the United States, not extraterritorially in Guantanamo. A separate memo was required because the Order on Review and Disposition did not cover the case of Mr. al-Marri. Upon review, he was transferred to civilian custody for criminal prosecution. See February 27, 2009 Presidential Memorandum on Transfer of Detainee [Ali Saleh Kahlah al-Marri] to Control of the Attorney General. Obama’s memo supersedes the Presidential directive of June 23, 2003 from President Bush to the Secretary of Defense ordering the detention of Mr. al-Marri as an enemy combatant.

• Consistency in the continuation of cases already in progress. (Source: Col. Lawrence Morris, Chief Prosecutor, Office of Military Commissions)
• The burden for proof of guilt is the same as civilian courts: “beyond a reasonable doubt.” (Col. Lawrence Morris, Chief Prosecutor, Office of Military Commissions)
• Courtroom facility and infrastructure are already in place.
• The restricted courtroom proceedings facilitate the protection of national security information.

Disadvantages

• “Crimes” relating to the law of war come not from the legislative branch, enacted by statute, but from executive
  interpretations of international law. (Source: Louis Fisher)
• Detainees cannot challenge the jurisdiction of the military commissions. The determination of “enemy combatant” status granting jurisdiction is determined by the military review boards. (Source: Col. Peter Mascioli, Chief Defense Counsel, Office of Military Commissions)
• Impartiality is undermined when the President can unilaterally create both the substantive law and procedural rules. (Supreme Court Justice Black, Reid v. Covert, 9 Reid v. Covert, 354 U.S. 1, 38-39 (1957))
• Military defense counsel does not have adequate access to detainees and intentional institutional and procedural barriers have precluded effective representation. (Source: Col. Peter Mascioli, Chief Defense Counsel, Office of Military Commissions)
• Unilateral action by the President to create military tribunals undermines their legitimacy.
• Defendants receive military defense lawyers free of charge but must pay for civilian lawyers.

Analysis

Col. Lawrence Morris
Jan. 22, 2009, Washington, D.C.

At a one-day event at American University in Washington, D.C. on January 22, 2009, twenty experts debated the legal jurisdiction, precedent, and future of military commissions, including Guantanamo. The experts included prosecutors, defense attorneys, academics, and representatives from human rights organizations. That same day, President Obama issued his three executive orders on Guantanamo.

Col. Lawrence Morris, Chief Prosecutor in the Office of Military Commissions, argued that the military commissions at Guantanamo already serve as a form of a “national security court” to adjudicate crimes that are more than conventional crimes. The perpetrators are accused of intentionally murdering civilians as a political statement against the United States. The core problem, as he sees it, is how can the adjudication of enemy combatants deviate from Article III courts while concurrently achieving due process safeguards, justice, and national security? Can Article III courts achieve justice if certain evidence is precluded? For example, statements that are taken in a non-coercive manner from detained individuals who have not been read their Miranda rights would be inadmissible in civilian Article III courts. Further, physical evidence may be precluded due to lack of chain of custody or because the evidence was obtained without a search warrant. Even evidence seized overseas without a search warrant would be excluded. He believes that the appropriate standard for evidence admissibility to prosecute combatants should require the government to show that the evidence is reliable and trust-worthy, such as within the totality of the circumstances.

Morris also pointed out the risks of evidence disclosure. The United States may not want another country knowing that information was acquired in that country. Equally, cooperating countries may not want the United States to reveal their role or the methods and means used by those countries.

Frank Rangoussis
Jan. 22, 2009, Washington, D.C.

Frank Rangoussis, Prosecutor in the Office of Military Commissions, asserted that military commissions provide strong procedural due process safeguards, including “substantially the same discovery rights as American soldiers facing a courts-martial.” He argued that under United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989), certain evidence must be protected because sleeper-cells and foreign counter-intelligence specialists could be able to learn critical information from sensitive information. Such information needs protection from full disclosure, as consistent with protecting U.S. national security interests. Thus, the prosecution is required to disclose information as prescribed by the rules but also must protect classified information to protect sources and methods.

Rangoussis also asserted that R.M.C. 701(a)(6) and 701(e), under the Rules for Military Commissions, parallel civilian evidentiary standards for exculpatory evidence in that they guarantee the disclosure of exculpatory evidence when it reasonably tends to: (1) negate guilt, (2) reduce the degree of guilt, or (3) reduce punishment. He maintained that this exculpatory evidence guarantee applies even to classified information.

Col. Peter Masciola
Jan. 22, 2009, Washington, D.C.

Navy Lt. Cmdr. Brian Mizer
Jan. 22, 2009, Washington, D.C.

Col. Peter Masciola, Chief Defense Counsel in the Office of Military Commissions, asserted that the largest obstacle to effective representation of military commission defendants is evidentiary. One of the critical questions is whether the United States tortured the victims through “enhanced interrogation techniques,” and, if so, how much? Should confessions and statements by the defendant made during or as a consequence of such interrogations be admissible as evidence? Are coerced statements admissible? Should coerced statements be admissible if deemed reliable, and the interests of justice are served by the admission? He asserted that the answer shapes how cases go forward and the outcome for justice.

Navy Lt. Cmdr. Brian Mizer, who served as defense counsel for Osama bin Laden’s driver, Salim Hamdan, agreed with Col. Peter Mascioli that evidentiary issues are hindering the fair prosecution of defendants. First, he highlighted the admissibility of hearsay. Next, he emphasized the lack of access to critical witnesses and interrogators. For example, he had to rely on the classified “summary” of interrogations rather than being able to interview the witnesses or interrogators. Thus, the current procedures make it harder, if not impossible, to identify potential witness bias, exculpatory evidence, or mitigating circumstances favorable to the defendant.

Mizer also illustrated the pragmatic difficulties of evidentiary discovery and offered a few examples that contradicted Rangoussis’ assertions that exculpatory evidence is readily disclosed. Mizer referred to one instance where the government maintained that the requested evidence did not exist. One week before the scheduled court date, the government found 600 pages of the allegedly nonexistent evidence and provided them in a garbage bag — dumped in randomly with no system of organization. Then, the night before the court date, the government provided another 600 pages, again in no sequential or organized manner. With the help of the few other defense attorneys who happened to be at Guantanamo to see their clients, he was able to identify and use one entry related to “Operation Sandman” in July 2003, which became critical to the defense of Hamden. Although he did mention it, it is important to consider that a civilian court likely would have sanctioned a prosecuting attorney for similar actions of delaying evidentiary disclosure and then providing the evidence to opposing counsel in an unorganized fashion in a trash bag.

Even though Lt. Cmdr. Mizer was careful to say that he has a great amount of respect for the prosecutors and that his opposing counsel is not likely trying to hide the ball, his vignettes and similar stories from other defense attorneys for military commission defendants raise serious questions about the impartiality of the military tribunal and the fair administration of justice.

David Luban, in his article “Lawfare and Legal Ethics in Guantanamo” in the April 2008 issue of the Stanford Law Review, suggests that defense lawyer harassment may be the result of a combination of (a) deliberate action by the government, (b) bureaucratic inertia, and (c) government incompetence. His article explores whether the persistent harassment of defense counsel may best be explained by the “lawfare theory” or the “torture coverup theory.” Lawfare holds that governments use international law and litigation to gain a military advantage.

The most difficult challenge for continuing the Guantanamo military commissions, even with modifications, is the need to strengthen the reputation of the United States as a champion of the rule of law. To do so, the United States needs to make a significant departure from the past practices of torture, extraterritorial indefinite detentions of civilians without bringing charges, and prosecutions of civilians by relatively secret military tribunals. At minimum, the military commissions would need to overcome the perception that they lack a sense of transparency and accountability. Procedural and evidentiary rules would also need to be reviewed and revised for compliance with domestic and international laws on the prosecution of combatants, the application of the laws of war, and human rights law, including the rights of the accused.

• Established rules of procedure and evidence could facilitate timely trials of detainees as compared to creating a new type of court.
• Established rules for pretrial confinement provide legitimacy for detentions.
• Once charges are served, the defendant is guaranteed a trial with 120 days.

Disadvantages

• Allows for military prosecution of certain civilians.
• The range of crimes is limited to a range of military offenses. See 10 U.S.C. 877 et seq.
• Minimum age requirement of 17 at the time the crime was committed, excluding the prosecution of at least one detainee who committed the alleged crimes at the age of 15 years. (Source: David J. R. Frakt)
• Statute of limitations of five years from the time of the offense to the time of referral of charges may preclude prosecution of detainees.

Analysis
In signing the executive order regarding Guantanamo detainees, President Obama expressed a preference for prosecution in a civilian court or a forum under the Uniform Code of Military Justice (UCMJ). Unsurprisingly, the current prosecutors of the military commissions favor courts-martial as the alternate forum if military commissions are disbanded. A military court-martial is a good solution if it is the most open process available to bring justice while protecting national security. Its advantages, however, should be weighed against the perception that the United States seeks to use secret prosecutions of civilians to its military advantage. Further, the more the United States relies on secrecy in its trials, the less trust domestic and international audiences will have that the process is fair. Increased frequency of using military courts to prosecute civilians creates a risk of the United States losing its reputation as a free democracy with a fair judicial system.

For an excellent comparison of military commissions and courts-martial, see David J. R. Frakt’s article in the American Journal of Criminal Law: “An Indelicate Imbalance: A Critical Comparison of the Rules and Procedures for Military Commissions and Courts-Martial.”

• Constitutional option, favoring participation by all three branches of government.
• Allows for prosecution of civilians in civilian court, as consistent with domestic and international human rights law.
• Civilian courts already deal with classified and sensitive information.
• Established jurisprudence, rules of procedure, rules of evidence.
• Infrastructure is already in place.
• Promotes transparency.

Disadvantages

• Evidence may not be admissible, allowing some detainees escape responsibility for crimes they committed.
• Military and intelligence information on methods and means may be disclosed to the defendant, defense counsel, and possibly witnesses or the public
• Security concerns with respect to court personnel and the surrounding communities.
• High-profile cases and security concerns could result in blocking streets off around the courthouse for extended amounts of time.

Analysis
In signing the executive order regarding Guantanamo detainees, President Obama expressed a preference for prosecution in a civilian court or a forum under the Uniform Code of Military Justice (UCMJ). Defense attorneys for military commission defendants favor civilian courts. They argue that the government needs to decide whether the prosecution of an individual is worth the risks of revealing information necessary to allow the defendant to confront the accuser, to question witnesses, and to wage an effective defense. Military commissions and military courts-martial vest all the power in the Executive Branch. Such military prosecutions allow the Executive Branch to arrest, prosecute, apply the law, determine the punishment, and even define the crime. Such unilateral and unchecked power tends to support abuses of power. In military courts, that abuse can be directed against civilian and, importantly, can be conducted in secret.

Article III courts are structured such that there exists a balance through the separation of powers of the three branches of government. The Executive Branch arrests and prosecutes. The Judicial Branch is the trier of the facts and applies the law. The Legislative Branch defines what is prohibited. This balance ensures appropriate protections of each individual’s civil liberties and rights. The system also promotes self-correction across the various actors involved in the system of justice. Yet, the system imposes stronger procedural safeguards for the admissibility of evidence as compared to military courts. It also could expose sensitive intelligence to the defense counsel, the defendant, and possibly witnesses, the public, and the press.

• Offers protections for military and intelligence information, thereby safeguarding U.S. interests.
• Would be controlled by the judiciary rather than by the military.
• Provides consistent judicial mechanism to prosecute future combatants.

Disadvantages

• The creation of a new type of court could take time, delaying speedy trials for detainees.
• Limited access by the public and press could undermine the legitimacy and perception of the court as fair and consistent with modern legal standards of justice.
• Lowered standards of evidence favors increased risks of convicting innocent persons.
• Its secret nature encourages a “trust us” approach to justice.

Analysis
As Katyal and Goldsmith point out, specialized federal courts already exist to deal with bankruptcy, taxes, and patents. The creation of another specialized court is not unprecedented. Further, all three branches of government would be involved in its operation, offering the institutional safeguards against unilateral abuses of power by one branch of government as discussed under the Article III analysis discussion. This new type of court could balance the needs of national security with the fair administration of justice. The risk is that the court will defend its secret operations behind a veil of “national security” interests. The continuation of secrecy would not remedy the public perception that such secret trials constitute unjust prosecutions by the government against civilians.

• Could re-establish the public’s confidence in the United States’ compliance with international law.
• Could avoid established domestic criminal law jurisprudence and allow for greater flexibility in rules of procedures, rules of evidence, and types of crimes.
• Could be located outside the United States.

Disadvantages

• Potential national security and intelligence risks.
• Implicit threat to state sovereignty over criminal prosecutions.
• Could be financially expensive.
• Does not address how or where to prosecute future combatants.

Analysis
Of the five forum options, the United States is least likely to establish a hybrid international tribunal to prosecute Guantanamo detainees.