A Uniform Complaint
Former military lawyers recount their fight to define justice for enemy combatants
Posted Aug 31, 2007 11:45 PM CST
By John Gibeaut
Long before he emerged from retirement to oversee the terrorism trials of detainees held in Cuba, Army Maj. Gen. John D. Altenburg Jr. knew that prosecuting them—even by military commissions—would not likely be the kind of cakewalk imagined by civilian policy-makers.
The lawyers in suits envisioned a schedule under which each of the hundreds of cases against detainees jailed on the U.S. naval base at Guantanamo Bay would take little more than a month to conclude, a colleague had told him. Apparently, they even believed that most would end with guilty pleas.
"He was incredulous that the defense guys would roll over," Altenburg says.
Altenburg's own 28 years as a lawyer in the Judge Advocate General's Corps told him the civilians just didn't get it.
"I said, 'Are they crazy?' " recalls Altenburg, now of counsel for Greenberg Traurig in Washington, D.C.
In the nearly six years since captives began arriving at the Guantanamo compound from Afghanistan and beyond, not a single defendant has gone on trial. As of the end of July, about 375 detainees remain at the base, and only a handful of them have even been charged.
The military lawyers assigned to defend the Guantanamo cases not only fought like hell for their clients, as Altenburg expected, but they also played a major role in court challenges to President Bush's November 2001 order authorizing detainee trials before military commissions.
Just three months after Altenburg returned to the Pentagon in March 2004, the U.S. Supreme Court held that detainees could file petitions for writs of habeas corpus in the federal courts to challenge the legality and conditions of their confinement. Rasul v. Bush, 542 U.S. 466. Then, in 2006, the justices tossed the presidential order and required Congress to approve any commission system for al-Qaida and Taliban fighters captured in Afghanistan.Hamdan v. Rumsfeld, 126 S. Ct. 2749.
Though Congress later obliged with passage of the Military Commissions Act of 2006 (PDF), the resolution of issues arising from any trials probably remains years away. Moreover, the Supreme Court has yet to settle definitively the first and perhaps most fundamental due process question of all: habeas corpus.
This fall, for the third time, the justices will consider in Boumediene v. Bush, No. 06-1195, the rights of Guantanamo detainees under the scheme Congress established in response to Hamdan.
But as they await the new Supreme Court term, former uniformed JAG lawyers nevertheless continue to be some of the system's most strident critics. Some who had joined amicus briefs supporting the detainees in Hamdan spent this summer signing onto more.
Others, such as Altenburg, worked with little success on the inside to set the process on a course that would survive court challenges. Still others told Congress during hearings on the MCA that they largely support a system more closely resembling the familiar court martial process, which they had worked with most of their careers.
Some of the former high-ranking JAGs interviewed say they would flush the commissions—not for lack of legal justification, but because they just look bad to the rest of the world. "We need to wipe the slate clean and start all over again," says Rear Adm. John D. Hutson, the Navy JAG from 1997 to 2000 and now dean of Franklin Pierce Law Center in Concord, N.H.
Not one says he harbors any philosophical problem with military commissions, nor with the short list of procedural and substantive rights that set the commissions apart from established military and civilian courts.
Critics say both administration and congressional schemes for Guantanamo commissions are simply a means, in effect, to hold combatants without charge indefinitely in order to keep them from returning to the battlefield—a perfectly legal device as long as hostilities continue.
UNCHARTED LEGAL TERRITORY
But while conventional wars mark the end of hostilities by surrenders and peace treaties, declaring an end to a murkier war on terror promises to be no simple matter.
In testimony as well as amicus briefs, some JAGs worried that a system perceived as so lopsided would provide little incentive to other nations to treat captured U.S. forces fairly and humanely.
Moreover, uniformed critics complain that White House lawyers created a regime that presumed guilt instead of innocence and loaded it with procedures stacked in favor of conviction. A true system of justice must be strong enough to withstand an acquittal if it is to survive.
"We can't simply say these guys are all guilty," says Hutson. "If we say that, then we reverse-engineer the system to ensure convictions, and the whole process is doomed to failure."
But regardless of their viewpoints on the future of commissions, all agree that Guantanamo might not have proved a world-class nightmare for the Bush administration if a tiny circle of White House lawyers had not shut out the military lawyers while fashioning new military justice procedures on their own.
"I think military commissions are a valuable tool," says Brig. Gen. Walter B. Huffman, the Army's chief uniformed lawyer from 1997 to 2001 and now the law school dean at Texas Tech University. "But the sad thing is, I believe, we would be halfway through with this thing if only a few people had listened."
"I think it is fair to say that the policy-makers didn't anticipate the strength of the opposition," says D.C. lawyer Bradford A. Berenson, who worked on the Bush plan as an associate White House counsel. "It would also be fair to say that the policy-makers were shocked at the court decisions that resulted."
The JAG Corps, which traces its history to George Washington's army lawyer, now comprises a force of 10,000 active duty, reserve, National Guard and civilian lawyers who serve the Army, Navy, Air Force and Marine Corps.
As members of the judicial branch of each service, JAG lawyers prosecute and defend criminal cases that arise from the Uniform Code of Military Justice. They also advise combat commanders on the laws of war and provide a variety of legal services to service members. In addition, JAGs supply the judges who preside over courts martial and other proceedings. The top uniformed lawyer for each branch carries the simple title of judge advocate general.
While independent by law, JAGs still operate in a system also inhabited by civilian lawyers who work in the general counsel offices for each branch as well as for the secretary of defense. Historically, those civilian lawyers tended to legislative matters, while JAGs managed the justice system, though their duties sometimes overlapped.
In 1992, conflicts between the JAG Corps' uniformed and civilian lawyers became public because of a memorandum from then-Defense Secretary Dick Cheney's office designating the civilian general counsels as the top lawyers for each military branch and providing that their legal opinions would be controlling.
Though the Defense Department defended the move as a proper exercise of civilian control, the uniformed lawyers widely viewed the memo as a power grab, according to a 2005 Pentagon study that examined the changing relationship between the uniformed and civilian lawyers. The Defense Department later backed down when lawyer David Addington reaffirmed JAG independence during his confirmation hearings to become Cheney's general counsel.
"That really brought home to me the ins and outs of how we got here," says Huffman, the only uniformed lawyer on that study panel.
"David Addington is a powerful, powerful guy," Huffman says. "He'll continue to be powerful as long as Cheney is around."
Later, as Vice President Cheney's lawyer, Addington played a pivotal role in the administration's restrictive rules for terror tribunals. It was Addington who drafted President Bush's November 2001 order creating the proposed Guantanamo commissions. He patterned them on a 1942 order issued by President Franklin D. Roosevelt authorizing commissions to try Nazi saboteurs who had sneaked into the United States aboard submarines.
Addington declined a request for an interview.
DISMISSED OR IGNORED
Thomas Hemingway. (Photo by Ron Aira.)
Protests by uniformed lawyers were unavailing. Each of the former JAG commanders says he routinely faced frustration when he tried to make his case with administration officials and later with members of Congress, only to be politely ignored once the door closed behind him.
"They really marginalized us," recalls Rear Adm. Donald J. Guter, now the law school dean at Duquesne University. As the Navy's JAG from 2000 to 2002, Guter was inside the Pentagon on Sept. 11. One of his lawyers was killed in the attack. "Right off the bat we began voicing concerns, and they didn't like it."
To many, the commissions debate remains largely academic. But for Altenburg and his top legal adviser, Air Force Brig. Gen. Thomas L. Hemingway, there were foreseeable practical and political problems that could have been avoided had their warnings been heeded.
Altenburg returned to service as the appointing authority in the Defense Department Office of Military Commissions, a position unique to military justice. His duties included selecting commission members and judges, approving charges and sending cases to trial.
By the time Altenburg joined him, Hemingway already was hip deep in setting up the commissions and dealing with the litigation that followed. He had been coaxed out of retirement a year earlier to help the uniformed lawyers make sense of the administration plan.
Before Bush formally authorized commissions, the very concept conjured up horror stories of secret trials where innocents could be convicted and even sentenced to death on the strength of evidence derived from multiple layers of hearsay and classified intelligence they may never see. And the president's version proposed a very short list of the due process rights ordinary defendants enjoy in both civilian and military criminal proceedings.
Viewing the events of Sept. 11 as an act of war, the policy-makers had decided they needed to deal swiftly, surely and severely with terrorists through a process that couldn't be stalled by defense challenges to abusive interrogation techniques or by evidence based on classified information or hearsay.
Trial by military commissions appeared to fit the bill. The government had used them under one name or another since George Washington's day to prosecute war criminals not otherwise subject to military law. And by designating the detainees as "illegal enemy combatants," the international standards of the Geneva Conventions wouldn't come into play.
Because they fought without the state sponsorship associated with a nation's regular armed forces, the administration argued they were ineligible for the protection the conventions extend to prisoners of war.
But there were widespread apprehensions about the system, and that became obvious to Altenburg on his first day back in uniform when Defense Department general counsel William J. Haynes II greeted him with an ominous heads-up. He told Altenburg that the department's inspector general had begun an internal investigation into complaints by two Guantanamo prosecutors that the system had been rigged to ensure convictions and withhold evidence favorable to the defendants. News of the accusations had caused morale to plummet throughout the prosecution office.
The investigation found no criminal or ethical wrongdoing, and Altenburg concluded that the prosecutors had misread hypothetical comments their boss had made during training. Though the remarks appeared innocent enough in that context, Altenburg nevertheless decided that the chief prosecutor, Army Col. Frederick L. Borch, had to go.
"I didn't want to have to explain the context," Altenburg says. "We already had enough explaining to do. I didn't need another rock in my rucksack."
FURTHER ISSUES TO TACKLE
Moreover, there were serious procedural and logistical shortcomings. A commission panel would consist of lay officers who not only acted as fact-finders but had the unheard-of power to veto the judge's decisions on what evidence to admit. The plan also would have admitted evidence obtained through torture. And, unlike most jurisdictions, a commission could issue a death sentence with fewer than 12 jurors, and no requirement for a unanimous vote.
The commission office also was supposed to monitor attorney-client conversations—a job Hemingway found so distasteful that he managed to pass it to the U.S. Southern Command out of Miami.
The JAG lawyers did win concessions: a ban on evidence obtained through torture and a death sentencing scheme that required 12 jurors and unanimity. But other attempts to significantly modify the president's plan would have to wait. Meanwhile, Hemingway had all he could do just to make the trains run on time.
"Personally, I didn't worry so much about what [legislation] was passed," Hemingway says. "I was worried about what I could do, and what my staff could do, to make it run right."
Besides creating legal problems, the civilians also failed to appreciate the logistics of trying cases at Guantanamo, more than 2,000 miles from Washington. Supplies and equipment would need to be flown in. It wasn't like hailing a cab. Airlifts had to be scheduled a month in advance.
"There was a war going on," Hemingway says. "I couldn't just snap my fingers and say, 'Hey, fellows, get me a C-130.' When I was talking to some of these folks, their eyes would just glaze over."
Interpreters, court reporters and other support personnel were essential, and all took time to assemble. Though commissions could close trials and even kick out defendants to hear classified evidence, Hemingway's staff attempted to declassify or edit as much of it as possible to keep the courtrooms open. "It didn't matter that we could close the proceedings; we didn't want to."
Both men learned that they, too, had greatly underestimated how long it would take to get Guantanamo's legal machinery up and running.
Shortly after he returned to active duty in August 2003, Hemingway confidently told the National Security Council to expect the first charges by the end of summer. "I didn't get any blowback from that," he recalls. "People seemed satisfied."
That idea went down the tubes after Hemingway learned that the intelligence agencies and the State Department had to vet the evidence in each case before it went to the president for initial approval. The process took at least nine months and as long as 18 months, he recalls.
Altenburg figured it would take a year to 18 months to have a fully functioning system. By November 2004, he had gotten four cases moving toward trial when a district judge stopped the proceedings against Salim Ahmed Hamdan, accused of being Osama bin Laden's driver. Altenburg halted the other cases on his own, to the consternation of the administration, which kept urging him to keep them moving.
"I'm trying to lead and manage a legal system that I believe is flawed," he says. "I'm not about to stick my finger in the eye of the federal judiciary."
Aside from the edgy legal theories and spotty logistical support, Altenburg and Hemingway soon learned they had also taken on a daunting PR assignment trying to convince skeptics at home and abroad that the administration knew what it was doing when it crafted the system. Hemingway says the public had become so polarized by the Bush proposal that trying to explain it "was like having a dialogue with a chorus of the deaf."
It didn't help either that the plan clashed intellectually with decades of JAG training and experience based on the Geneva Conventions, the Uniform Code of Military Justice and the international laws of war.
"I wore ruts in the road to Capitol Hill," says Hemingway, who retired for good on May 1. "I can't tell you how many times I was over there."
AT ODDS WITH MAIN ALLY
Hemingway also took grief from abroad. shortly after he returned to active duty in August 2003, he drew the assignment of mollifying Lord Peter Goldsmith, the British attorney general who had become one of Guantanamo's loudest international critics. Like others, he wanted the U.S. to close the prison camp and cover the detainees with the full panoply of rights that apply to garden-variety criminal defendants.
"He didn't think it was a war," Hemingway says. "I wish he would have told us that at first. He could have saved us six or seven months."
The U.S. eventually returned the last of nine Britons held at Guantanamo to the United Kingdom in 2005 after Prime Minister Tony Blair promised they wouldn't pose a continued security threat.
By February 2006, the system remained frozen and Altenburg considered resigning as his two-year anniversary neared. A friend persuaded him to stay until after Hamdan was decided, telling him, "You're the only thing that's keeping it together and away from the cowboys."
With the benefit of hindsight, however, stopping all the cases appeared to be the right move after the Supreme Court's 2006 holding that the administration lacked the authority to set up commissions without congressional approval.
"We were just going about this thing and doing our jobs," says Altenburg. "I didn't predict Hamdan. I just wanted to make a better system."
The Military Commissions Act closely resembles the original presidential order, but it drops the problematic attempt to remove defendants from courtrooms to keep them from hearing classified evidence. The act also made it clear that the judge, and not the panel members, had the last word on questions of law.
Still, critics remain wary of the act's tolerance of hearsay without sufficient corroboration, as well as ambiguous language that could allow evidence secured through torture.
This fall, in Boumediene, the court will focus on whether Congress properly stripped habeas protection from the detainees. The case involves six Algerians arrested in Bosnia and Herzegovina. Although the Bosnian courts cleared them, they say police there illegally rearrested them and turned them over to the U.S. military, which in turn moved them to Guantanamo.
Also on the docket is the consolidated case of Al Odah v. United States, No. 06-1196, which involves 39 defendants, nearly all of whom say they wound up at Guantanamo after they were captured by Pakistani or Afghan Northern Alliance forces, then handed over to the U.S., which had offered rewards for suspected terrorists.
But with passage of the Military Commissions Act and Bush's signature on Oct. 17, 2006, Altenburg's job was done. On his way out 10 days later, at 5 p.m. Oct. 27, Altenburg dropped off implementing regulations he had been asked to draft for the new act, along with his resignation letter, and headed back to his desk at Greenberg Traurig.
Despite their travails and the imperfections they see in the MCA, Altenburg and Hemingway both still expect it to be easier to defend than its executive-issued predecessor. For one, it answers the court's main complaint in Hamdan and involves Congress in the process.
Congress denied the writ to detainees in the MCA through an amendment to the Judiciary Act of 1789, which conferred habeas jurisdiction on the federal courts.
Hemingway says he hopes the MCA will enjoy a longer life than the president's version. "Not only do I think it can survive, I think we may need to use it again."
The Congressional Research Service's 2001 report Terrorism and the Law of War (PDF).
The Defense Department's 2005 legal services report (PDF).
Filings in the Military Commissions cases brought against enemy combatants.