Annual Meeting

Military Commission Lawyers Defend Their Work, Concede Flaws in the System's Earlier Iterations


Plenty of current and former military brass participated in and observed Saturday’s panel on historical perspectives concerning the Obama administration’s resumption of military commission trials in the war on terror. But once again, the ultimate answers and explanations needed to come from outside the room—from the U.S. government, not its military.

The presentation, titled “The Renewed Trials by Military Commission Under the Obama Administration: An Historical Perspective,” gave oft-criticized players such as Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, an opportunity to argue how he and others work at making the controversial system fair and fitting under the rule of law, and how changes to the admittedly flawed initial framework since 2001 have made it possible. No critics challenged the professionalism of Martins and others, but they argued that the system in which they are required to work is seriously flawed.

“I don’t think we can look at it with any pride at all,” said panelist Bryan Broyles, deputy chief defense counsel for the Office of Military Commissions. Broyles complained about the “backwards planning” of a system that has sought to work around mistakes such as the torture and murder of detainees.

The moderator of the panel was retired Gen. John D. Altenburg Jr., who took leave from private practice from 2004 to 2006 to work as appointing authority for military commissions. Other panelists included retired Marine Col. Ralph H. Kohlmann, who was a presiding officer for the Guantanamo military commissions; and Will A. Gunn, former chief defense counsel for the Office of Military Commissions.

While Martins and others admitted that earlier iterations of the commissions were problematic—President George W. Bush’s 2001 executive order permitting such trials for al-Qaida operatives and others working with them, and the Military Commissions Act of 2006, which the U.S. Supreme Court subsequently ruled was unconstitutional for lack of habeas corpus rights—they argued that the Military Commissions Act of. 2009 cured the major problems.

During the Q&A session, Benjamin Davis, an associate professor at the University of Toledo School of Law, passionately—and perhaps, given the lack of a microphone, loudly—argued that there have been three versions of the commissions since 2001, and “it’s all been about hiding official misconduct. It’s a bullshit system.”

Martins, who besides being a lawyer is a highly decorated combat veteran, responded in a soft, measured tone, addressing the “charged emotions in a lot of this.”

Martins said: “I agree that a big part will be transparency, and there is not a justification to close [proceedings] because they’re embarrassing or law was broken [by the government].” He had said earlier that he believes transcripts of proceedings and other documents will prove them fair. (Though he also pointed out that when the Obama administration sought to close Guantanamo and try the accused terrorists in federal courts, Congress passed a law stating that no funds could be spent on transferring them to this country.)

Davis’ exhortations had been jolting in the softly lit conference room, and he replied in turn that he did not question the professionalism of the military personnel involved, but only the designs laid out by our government that they must work under, defend and carry out.

Harvey Rishikof, chair of the ABA Standing Committee on Law and National Security, offered one last comment from the audience: “This is a U.S. government policy issue,” and representatives of the U.S. government “should formally say why we do it this way.”

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