Guantánamo Lawyer Michel Paradis: Military Commissions are Based on Legal Apartheid

22.4.17

An illustration of guards on duty at military commission pre-trial hearings at Guantanamo in 2013, by the artist Molly Crabapple from the first of four articles she wrote and drew for Vice News.Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Here at Close Guantánamo, we have been campaigning since our founding over five years ago to close the prison at Guantánamo Bay, Cuba, because, as we explain in our mission statement, “Guantánamo harms our nation every day it stays open, and it continues to serve as a potent symbol for terrorist recruitment. Guantánamo also undermines our bedrock commitment to the rule of law, making that fundamental principle less secure for all Americans.”

In practical terms, most of our opposition to Guantánamo’s existence has focused on the injustice of indefinite imprisonment without charge or trial. During President Obama’s last five years in office, we persistently encouraged him to release the men unanimously approved for release by high-level, inter-agency government review processes, including the Periodic Review Boards. These began in November 2013, but their deliberations ended up dominating much of the discussion about Guantánamo in his last year in office.

However, we also recognize that, while failing to charge prisoners with crimes and to put them on trial, or to treat them as soldiers and to hold them according to the Geneva Conventions, is an inexcusable derogation from internationally accepted norms regarding imprisonment, the situation for those facing trials at Guantánamo is, fundamentally, no better. Just ten of the 41 men still held are facing, or have faced trials in the military commission system launched under George W. Bush in 2001, revived by Congress in 2006 after the Supreme Court ruled it illegal, and — ill-advisedly — revived again under President Obama in 2009, but the system remains unfit for purpose, and a betrayal of US values.

We have spent some time covering the commissions here — most recently in Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law, a cross-post, with my commentary, of the text of a powerful speech delivered at a national security conference at Georgetown University by the commissions’ Chief Defense Counsel, Brig. Gen. John G. Baker, and in another article entitled, In Contentious Split Decision, Appeals Court Upholds Guantánamo Prisoner Ali Hamza Al-Bahlul’s Conspiracy Conviction, and I have also covered the commissions for Al-Jazeera, in an article entitled, Guantánamo torture victims should be allowed UN visit, and on my website, in an article entitled, Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions.

Below, we’re delighted to be cross-posting a new — and devastating — analysis of the commissions’ irredeemable lawlessness by Michel Paradis, a senior attorney for the Department of Defense, who has represented several Guantánamo prisoners over many years. The impetus for Paradis’ article — in America: The Jesuit Magazine — was the filing of two cases before the Supreme Court, but his overview of the system, which he describes as a form of legal apartheid, is timeless. As he states, the commissions “are notoriously flawed. Despite costing more than a billion dollars so far, they have yet to produce a single conviction that is not tainted by legal doubt,” and they “are also an embarrassment to American standards of due process,” because “[l]ax rules of evidence allow for the admission of everything from ‘hearsay’ (legal jargon for rumors) to evidence derived from torture.”

As Paradis also states, “all of this is possible only because the Military Commissions Act, the law creating these tribunals, limits their jurisdiction to the trial of noncitizens — and only noncitizens. That means there are 43 million people residing in the United States who are subject to this law. But the terrorists responsible for the massacres at San Bernardino, the Pulse Nightclub in Orlando, Fla., and Fort Hood, as well as the Boston Marathon bombing, are not. Those attacks were all perpetrated by citizens who must be tried in the real court system, where nearly 500 suspected terrorists have been successfully prosecuted since Sept. 11, 2001.”

Unfortunately, it appears that the Supreme Court will not decide whether to proceed with the two cases submitted to it until September, but for those who want to know more about the cases, we recommend a recent National Security Law Podcast in which Steve Vladeck of Just Security and Bobby Chesney of Lawfare look at the two cases: of Abd al-Rahim al-Nashiri (currently involved in interminable pre-trial proceedings), whose submission “could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11,” and of Ali Hamza al-Bahlul, originally convicted in 2008, but whose conviction has partly been overturned on appeal, whose case “could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict.” See the Nashiri petition here, and Bahlul is here.

Guantánamo lawyer: Military tribunals are built on American apartheid
By Michel Paradis, America: The Jesuit Magazine, March 29, 2017

The Guantánamo Bay detention camp presents one of the great political, legal and moral dangers of our time. Of the hundreds of men held there over the past decade and a half, 41 remain. Only 10 of those are at some stage of prosecution before the special Guantánamo tribunals, the so-called military commissions. That figure includes five men accused of planning the Sept. 11, 2001, attacks.

As a senior attorney for the U.S. Department of Defense, I have represented several Guantánamo detainees slotted for trial. I submit that the single greatest danger these tribunals pose is the fact that they are built upon a form of apartheid; the Guantánamo tribunals are a separate and unequal justice system into which noncitizens have been segregated. That creates a precedent that endangers us all.

Two cases going before the Supreme Court in the next few months challenge the constitutionality of the Guantánamo tribunals on various legal grounds. But the most important question the court will have to answer is whether the war on terrorism has made obsolete the constitutional commitment to equality before the law.

The Guantánamo tribunals are notoriously flawed. Despite costing more than a billion dollars so far, they have yet to produce a single conviction that is not tainted by legal doubt. They have been bogged down for a decade by uncertainty over what the law is and the exorbitant expense of maintaining an ad hoc court system on an isolated naval base in Cuba. The alleged perpetrators of the Sept. 11 attacks are not expected to stand trial until at least 2020, depriving the 3,000 people who died on that day, and their families, of justice for over a generation.

These tribunals are also an embarrassment to American standards of due process. They are subject to routine political interference, are often conducted in secret and are presided over by judges who lack independence. Lax rules of evidence allow for the admission of everything from “hearsay” (legal jargon for rumors) to evidence derived from torture.

I suggest that all of this is possible only because the Military Commissions Act, the law creating these tribunals, limits their jurisdiction to the trial of noncitizens — and only noncitizens. That means there are 43 million people residing in the United States who are subject to this law. But the terrorists responsible for the massacres at San Bernardino, the Pulse Nightclub in Orlando, Fla., and Fort Hood, as well as the Boston Marathon bombing, are not. Those attacks were all perpetrated by citizens who must be tried in the real court system, where nearly 500 suspected terrorists have been successfully prosecuted since Sept. 11, 2001.

There are many legal reasons that the Supreme Court should strike down this segregation of the justice system. Most important, though, is that for all the dark periods of bigotry and national danger in U.S. history, this is the first time that we have retreated from the constitutional commitment to equal justice under law that has governed this country since the end of slavery. In fact, in every previous use of military tribunals, including those used to try Nazis during the height of World War II, citizen war criminals were tried on equal terms with noncitizens. The only countries that made the distinction now being made in Guantánamo were Germany and Japan. And after the war, the United States Army prosecuted the German and Japanese judges and lawyers involved in these trials for denying the most fundamental fair trial guarantee: the application of the Golden Rule.

In his poem on the rise of the Third Reich, Martin Neimöller warned us that illiberalism accretes from the outside in. It is rarely sudden. It relies on precedent. “First they came for the Socialists, and I did not speak out — Because I was not a Socialist,” he wrote, as he confesses to keeping silent as they then came for the trade unionists and then the Jews. “Then they came for me — and there was no one left to speak for me.”

The Guantánamo tribunals have become a laboratory for the bare minimum of due process that the public can be convinced to accept. Each aberration, each shortcut on the rules of evidence, on torture or on judicial independence becomes a precedent. When Guantánamo was opened, the Bush administration intended it to be “the legal equivalent of outer-space.” But the truth is that it is only a few hundred miles from the American shore.

The Guantánamo tribunals perpetuate a naïve prejudice that the rule of law is a luxury, a waste of time or a privilege belonging to “us” and not to “them.” This paradigm is dangerous because the rule of law that we depend upon to protect us, to enforce our contracts and to secure our rights is a fragile thing. It depends on a shared confidence in the norms that give judges, courts and law their power to protect us from “them.” As the Rev. Niemöller reminds us, we are foolish if we think that being quiet in the face of injustice will keep us safe and on the inside; that we will remain with the “us.” What we do to the least of our brothers and sisters eventually becomes the rule for us all.

Note: The illustration at the top of this article is by the wonderful Molly Crabapple, from the first of four articles she wrote and drew for Vice News in 2013 after visits to Guantánamo. See the others here, here and here.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

6 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, a cross-post of a powerful article by Michel Paradis, a lawyer with the Defense Department who has represented several Guantanamo prisoners in their military commissions over the years. Michel’s article correctly identifies the commissions as advancing a form of legal apartheid against non-Americans, as well as undermining the US’s claim to respect and uphold the rule of law, and it’s prefaced with my own introduction. The entire article is cross-posted from http://www.closeguantanamo.org, the website I co-founded five years ago.

  2. Andy Worthington says...

    Thanks to everyone liking and sharing this. It’s very much appreciated, as Guantanamo has generally fallen off the radar these days, drowned out by the daily nonsense emanating from Donald Trump and his administration.

  3. Andy Worthington says...

    I first met Michel Paradis around eight years ago, I think, with another Guantanamo attorney, Todd Pierce, when they were visiting London and we spent an enlightening evening dissecting America’s post-9/11 madness. Michel is a very persuasive witness to the lawlessness of Guantanamo’s military commissions – or to be strictly accurate, as he explains here, to their lawlessness for non-US citizens, as US citizens cannot be tried via the commissions.

  4. Andy Worthington says...

    Here’s an interesting update about the commissions from Carol Rosenberg in the Miami Herald, about Ibrahim al-Qosi, who accepted a plea deal in July 2010 and was released in July 2012, but then became “a spiritual leader of sorts for al-Qaida of the Arabian Peninsula.”
    Navy lawyers Mary McCormick and Suzanne Lachelier have filed an appeal, which “argues that the charges he pleaded guilty to — providing material support for terror and conspiring to do so — weren’t war crimes, after all,” based on an appeals court ruling in 2012 that, “while providing material support to terror is a federal crime, it’s not a violation of the Law of War and not punishable at a military commission.”
    The appeal, as Rosenberg described it, also echoes Michel Paradis’s concerns, and “makes an Equal Protection claim, that the Guantánamo court is itself illegitimate because it was created to charge only foreigners.” McCormick and Lachelier call the commissions an unprecedented, segregated “inferior criminal justice system” that “bears no rational relationship to any governmental interest the Constitution condones.”
    However, “before the U.S. Court of Military Commission Review considers the arguments the judges have asked the defense lawyers to demonstrate that Qosi actually wants to appeal,” and also wonder if al-Qosi’s “post-release participation in hostilities against the United States or its coalition partners” might have some influence on the appeal.
    See: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article146071434.html

  5. Tom says...

    Maybe it’s too much to hope for. But a key part of Trump’s budget request is funding for his wall with Mexico. If that doesn’t happen, the govt. will shut down (non-essential services will stop) this Fri. the 28th. I’m curious. Where would they get the funding to keep Guantanemo open? If they had to close it, where would they put the remaining detainees?

  6. Andy Worthington says...

    That’s extraordinary, Tom. I’ve been offline today until now, so I hadn’t seen that story. As the Guardian described it, “Looming above Washington as Congress and the White House attempt to avert a funding shutdown in only five days’ time, Donald Trump’s central campaign promise to build a wall on the Mexican border threatens to bring the US government to a halt this week in a national display of dysfunction … Without a deal, funding for the government will run out at midnight on 28 April, Trump’s 100th day in office.” See: https://www.theguardian.com/us-news/2017/apr/23/donald-trump-mexico-border-wall-threatens-government-shutdown
    I’m not sure what would happen if there was no money to keep Guantanamo open, but I can’t see it happening because it’s essentially part of the naval base, and it’s difficult to imagine any military spending being hit by a budget shutdown – apart from salaries, of course.
    The logical alternative to Guantanamo is to move the men to a facility on the US mainland – presumably a military facility – but it’s never been clear how that would be achieved without Congressional approval. But I can’t see it happening, because Trump, of course, doesn’t want to close the prison.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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