The U.S. military justice system is designed for military personnel, not terrorists, says a new report from the National Security Institute (NSI) at George Mason University as it calls for reform.
Soon after the Sept. 11, 2001, attacks, President George W. Bush signed an order authorizing military commissions to prosecute international terrorists for violations of the laws of war. However, in its 2006 decision Hamdan v. Rumsfeld, the Supreme Court quashed those efforts and Congress was needed to re-establish the commissions, which was done through the Military Commissions Acts of 2006 and 2009.
There are currently three military commissions actively engaged in protracted pre-trial litigation concerning seven defendants, including Khalid Sheikh Mohammed and four others charged as co-conspirators related to the 9/11 plot.
Many factors have contributed to the lengthy proceedings and pre-trial litigation, but the NSI Law and Policy paper says congressional attention to three key issues has the potential to eliminate significant impediments to reaching trial.
These issues are:
Curbing Misinterpretation and Abuse of the Unlawful Influence Statute
The sheer number of allegations concerning unlawful influence demonstrate the need for reforms. The report’s author, Adam R. Pearlman, says the “Apparent Unlawful Influence” doctrine should not apply to military commissions because the underlying rationale is inapplicable. Pearlman adds that relying on the prohibition against actual unlawful influence is a better approach.
Restoring the Contempt Power of Commissions Trial Judges
A federal court ruled last year that military commissions trial judges cannot unilaterally find someone in contempt. The “contempt power” refers generally to the inherent and unilateral power of a judge to enact punishments for acts that obstruct the court’s orders or the administration of the justice system.
Clarifying Permissible Detainee Monitoring
The military commissions defense bar has raised several allegations of government surveillance of attorney-client meetings at Guantanamo Bay, but the report says there is precedent for conducting surveillance of detained or imprisoned terrorists during attorney-client meetings for intelligence and force protection purposes.
The report sets out three actionable recommendations to address these issues.
- First, Congress should amend current law to clarify that the military justice common law doctrine of “apparent unlawful command influence” does not apply to proceedings under the Military Commissions Act, and to provide for appeals of findings of actual unlawful influence. The proposed amendment to the unlawful influence statute would hold judges accountable for rigorous fact-finding, rather than conjecture concerning appearances in this highly public process, about which passions run high from all sides of the bar and political spectrum.
- Second, Congress should amend current law to provide military commissions judges with a unilateral contempt power consistent with those found in the criminal and military justice systems. Amending the contempt provision will restore to the military commissions trial judiciary a basic power all other judges have – the power to control proceedings in their courtrooms.
- Finally, Congress should consider a means to clarify that the statutory right to counsel in military commissions does not encompass a right to be free from monitoring for security, intelligence, and force protection purposes, and establish a framework to ensure any surveillance is walled-off from military commission proceedings. Pearlman says clarifying that there is no inherent due process concern with legitimate collection against national security targets likely to have foreign intelligence and information related to force protection concerns will remove a critical distraction from the system.
Beyond those recommended in the paper, Pearlman mentions additional measures Congress might consider:
- Establishing military commissions as the trial judges’ primary duty, with the location of the proceedings as their primary duty station.
- Clarify that the authority to dismiss defense counsel from their representational duties after an attorney-client relationship has been established lies with commissions trial judges, not the Chief Defense Counsel.
- Streamlining the arduous discovery process.
- Examining the practice of having the accused present at the beginning of every court session to enquire as to whether he waives his presence.
- Affirming the proper extent of the subpoena power able to be exercised in relation to the commissions.
- Revisiting the structure and role of the U.S. Court of Military Commission Review.
- Vesting jurisdiction for litigation over conditions of confinement with the U.S. District Court for the District of Columbia as an issue properly lying in habeas rather than continuing the current practice of commissions litigating detention commissions at nearly every session as it arguably relates to the ability of the accused to participate in his defense.
Pearlman says lengthy delays have exposed the need to make statutory reforms to achieve justice for the victims and the accused, and ultimately restore confidence in this “important age-old war power.”
“Although some unforced errors like those addressed in the D.C. Circuit’s al-Nashiri decision [last week] need to be addressed by other means, modest statutory reforms can remedy a few key issues delaying resolution to some of the most significant trials of this conflict,” he said.