Gitmo military commissions should end or be reformed, says report shared with Congress in ABA letter
Aerial view of the U.S. Naval Station Guantanamo Bay, Cuba. Shutterstock / everetthistorical
A panel of experts in national security and military law recommends either ending or reforming the military commissions being used to try terrorism suspects at U.S. Naval Station Guantanamo Bay, Cuba, according to a report the ABA shared in letters sent to two Congressional committees Tuesday.
The report was sent to both the Senate and House Committees on Armed Services from the ABA’s Governmental Affairs Office. “The U.S. Military Commissions: Looking Forward” was created by a group of 24 experts attending a one-day workshop in December, which was co-sponsored by the ABA’s Standing Committee on Law and National Security and the George Washington University Law School. Those recommendations are sweeping, according to the report’s executive summary.
“All workshop participants believe that whatever their original intent and design, the military commissions at Guantanamo are not working as intended,” it says. “They should either be reformed or terminated in the interest of U.S. national security and justice for the families of victims of terrorism.”
The commissions have faced multiple political, legal and diplomatic problems, the report says. They were controversial in the United States from the beginning, and the U.S. Supreme Court has repeatedly ruled that detainees are entitled to file habeas corpus petitions. Former President Barack Obama faced political pushback when he attempted to close the Guantanamo Bay prison.
Some participants in the workshop believed reforms, via legislation or the executive branch, could improve the military commissions process. These reforms could include:
• Removing the death penalty as an option, thereby reducing the need for extensive appellate review.
• Either making the Court of Military Commissions Review a full-time court or eliminating it.
• Expanding the role of the commissions’ Convening Authority, the military officer in charge
• Permitting more military and civilian judges to act as judges.
• Providing secure facilities for privileged lawyer-client conversations. This recommendation may stem from the espionage complaints of civilian lawyers representing USS Cole bombing suspect Abd al-Rahim al-Nashiri.
Other participants thought ending the commissions made more sense, particularly since reforms would likely be challenged. Participants suggested alternatives, first and foremost holding trials in U.S. federal courts. That would require ending the prohibition on moving detainees to the continental United States—a political flashpoint for Obama—or conducting trials via videoconference. (Trial by videoconference in the immigration courts has been criticized by immigration attorneys, as Mother Jones recently noted.) Other options proposed include military courts-martial; courts in a third country; and what the report called hybrid domestic-international courts.
The executive summary also suggests that bringing more detainees to Guantanamo would complicate the situation further and should be avoided, and that President Donald Trump should define the “end of conflict” in order to facilitate pleas and reduce the chance of conflicting rulings on that topic.
The report was compiled from the proceedings of the December workshop, which included law professors, private attorneys, former military officers and lawyers for human rights organizations. Staff and members of the Standing Committee on Law and National Security also participated, including the committee’s chair, Judge James E. Baker, former chief judge to the U.S. Court of Appeals for the Armed Forces. However, the report takes pains to note that it does not represent the views of any organization the participants are a part of, and that participants approved only the accuracy of the report’s description of the workshop, not necessarily the contents.
While the report was shared with the congressional committees by the ABA, the report’s conclusions are not official stances or policies of the association, since it has not been approved through the ABA House of Delegates or the Board of Governors.
“The report provides a good overview of the challenges involved, identifies U.S. and internationally recognized legal authorities, and includes a comprehensive discussion of policy issues discussed and options for resolving them,” wrote Director Thomas M. Susman of the Governmental Affairs Office in his letters to the committees. “We hope you will find the report helpful as you consider and make important policy decisions on the continued or future use of military commissions to try non-U.S. citizens for acts of international terrorism.”
ABA Journal (2013): “Meet the man who would save Guantanamo”