When Rhetoric Trumps Good Sense: The GOP’s Counter-Productive Call for Military Commissions


A prisoner at GuantanamoIn the dark farce that is the Obama administration’s counter-terrorism policy, decisions are now, it seems, being made by whoever makes the most noise, regardless of whether what they are shouting for actually makes sense.

Since last November, when Attorney General Eric Holder first announced that five men — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the terrorist attacks of September 11, 2001, critics have pushed to keep the men at Guantánamo, and to try them instead using the latest version of the Military Commission trial system that was dragged from the grave in November 2001 by Dick Cheney, who, at the time, was looking for a bent system in which to try and execute “enemy combatants” with the minimum of due process.

Cheney’s attempts to thoroughly subvert the Constitution failed, however, and in June 2006, the Supreme Court ruled that the Commissions were illegal, because their “structures and procedures” violated both the Uniform Code of Military Justice and the Geneva Conventions. Congress then revived the Commissions, in the Military Commissions Act of 2006, but although Mark 2 was a slight improvement on the original version, the Commissions never succeeded in persuading anyone with a genuine respect for the law and with an interest in the effective prosecution of terrorist suspects that they were much more than a joke; a half-baked process, full of holes, in which the military judges struggled to cope with the unfamiliar and often bewilderingly imprecise legal terrain, and only three verdicts were delivered.

When President Obama suspended the Commissions, on his first day in office, sensible people were overjoyed, as it seemed that the President had understood that federal courts were more than capable of handling cases related to terrorism, and had secured convictions in 195 terrorism cases (out of a total of 214) between the 9/11 attacks and June 2009.

In fact, as Human Rights First explained in a major report examining the federal courts’ record on cases related to terrorism, the statutes prohibiting “material support” of terrorist organizations “were drafted very broadly, causing concerns that they could be used to penalize individuals for exercising legitimate First and Fifth Amendment rights.” Human Rights First suggested that, “over the years the courts have construed and Congress has amended the statutes so that they are less susceptible to abuse,” but even so, “[b]ecause material support prosecutions do not require that any act of terrorism actually occurred,” and have successfully involved prosecuting “persons who enrolled at terrorist training camps, who acted as messengers for terrorist leaders, who intended to act as doctors to terrorist groups, or who raised money to support terrorist organizations,” they “can potentially result in overreaching.”

In other words, cautious lawyers worry that it is, perhaps, too easy to secure convictions in federal court cases involving “material support” to terrorism, whereas in the venue favored by Eric Holder’s critics — the Military Commissions — knowledgeable lawyers have pointed out that there is no precedent for pursuing “material support” cases, and, last summer, lawyers for the government unsuccessfully urged Congress to drop “material support” as a charge in the revived Commissions, fearing that it would be overturned on appeal.

Despite the federal courts’ impressive track record, and for reasons that have never been adequately explained, President Obama decided, by May last year at the latest, to work with Congress to revive the Commissions. This was a major mistake, as numerous well-qualified critics — including Lt. Col. David Frakt, Lt. Col. Darrel Vandeveld, and retired Rear Admiral John Hutson — explained to various Senate and House Committees last summer, when the criticisms mentioned above were raised.

It appears that the President may, with some cynicism, have reintroduced the Commissions both to assuage Republican critics (and, perhaps, critics within his own party), and may also have been persuaded by his interagency Task Force, which reviewed the Guantánamo cases throughout last year, that restoring the Commissions would provide a second tier of justice for those cases in which the evidence was less than watertight.

Nevertheless, the decision to revive the Commissions provided invaluable leverage to those who opposed civilian trials outright: deluded individuals whose belief in the Commissions’ importance was not based not on any evidence that they actually worked (when they were palpably useless compared to federal court trials), but out of a dogged belief that only a military arena was suitable for trying terrorists.

These critics — alarmingly large in number, it seems — persistently ignored, and continue to ignore the inconvenient truth that, despite his bluster, George W. Bush prosecuted terrorists in federal court, and, in fact, had far more success in federal court than in the Military Commissions at Guantánamo.

The reason for this counter-productive denial of reality boils down to just one thing: the critics’ insistence that America is at war with terrorists, who, as a result, cannot and must not be regarded as criminals, even if all the evidence, including the successful prosecutions of terrorists in federal court under George W. Bush, demonstrates that their approach will, in all likelihood, result in more legal challenges and less lengthy sentences. In order to hold firm to their bellicose rhetoric, the critics are, it seems, prepared to undermine their own case where it counts the most: in a court before a judge and jury.

In case anyone has forgotten, two of the three men convicted in the Military Commissions, David Hicks and Salim Hamdan, are now free men, having served very short sentences, and in the case of the third man, Ali Hamza al-Bahlul, who was sentenced to life in November 2008 for making an al-Qaeda propaganda film, lawyers are currently appealing against his sentence.

Inside the Obama administration, only one man, Attorney General Eric Holder, seems to understand the importance of holding firm on the decision to try Khalid Shiekh Mohammed and the four other men in civilian court. Last month, Holder told Jane Mayer of the New Yorker, “I don’t apologize for what I’ve done. History will show that the decisions we’ve made are the right ones.”

Last week, in testimony before the House Appropriations Subcommittee on Commerce, Justice and Science last week, Holder defended his position. When Texas Rep. John Culberson raised the topic of Ahmed Khalfan Ghailani, a “high-value detainee” accused of being involved in the African Embassy bombings in 1998, who was transferred to New York last May, to face a federal court trial that will begin next year, Holder had a swift response when Culberson asked why he was being put forward for a civilian trial when he was a foreign national, alerting Culberson to the readily accessible fact that other conspirators in the bombings had already been tried and successfully convicted in federal court, and that those successful prosecutions had taken place during the Bush administration.

Holder also objected to claims that terrorist defendants would be “coddled” in federal courts, stating that this suggestion got his “blood boiling,” and adding that terror suspects “have the same rights that a Charles Manson would have, any other mass murderer … those are the comparisons people should be making, not to average citizens who have done no harm and committed no crimes.”

He also seemed to undermine the Commissions, perhaps indicating that he had been opposed to their reintroduction, noting, when questions were raised about terror suspects disrupting trials with persistent outbursts (as happened with Khalid Sheikh Mohammed during Military Commission hearings at Guantánamo in 2008), that Aafia Siddiqui, the Pakistani woman who was recently tried and convicted in New York on terror-related charges, was removed from the courtroom after the first day because of her outbursts and interruptions. No doubt recalling KSM’s behavior at Guantánamo, Holder told the Committee, “Article III Judges are used to dealing with people like this and know how to deal with them,” whereas judges in Military Commissions “don’t feel as comfortable clamping down on a defendant who’s trying to do that.”

Whether Holder succeeds in persuading President Obama not to perform a worrying U-turn on the 9/11 trials remains to be seen. To my mind, capitulating to pressure — whether from an easily led public, or from Republican critics — would be tantamount to political suicide, but it apparently remains a possibility. Even more worryingly, the decision not only to revive the Military Commissions but also to publicly endorse holding some of the prisoners at Guantánamo indefinitely without charge or trial has added another appalling subtext to a story that, in and of itself, is deeply shocking.

President Obama first announced his decision to continue the Bush administration’s policies of holding men without charge or trial in a major national security speech last May, when he referred to prisoners who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States,” and the policy was confirmed in January, when the Task Force on the prisoners’ future delivered its findings, and recommended that 47 of the remaining 188 prisoners should continue to be held indefinitely without charge or trial.

As well as endorsing the notion that preventive detention is somehow acceptable (which it is not), and endorsing the notion that the preventive detention of prisoners at Guantánamo is acceptable because they were tortured (which is even worse), Obama and his Task Force also, effectively, announced with these statements that there was a three-tier system of justice at Guantánamo, consisting of federal court trials, Military Commissions, and indefinite detention without charge or trial.

Last week, picking up on this, Benjamin Wittes of the Brookings Institute, who has long argued for the creation of a new national security court, used the warped logic of this three-tier system to argue, in a Washington Post op-ed with former Assistant Attorney General Jack Goldsmith, that the most sensible way forward was not to bother trying Khalid Sheikh Mohammed at all, and simply to carry on holding him in military detention. As they explained:

Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs.

Wittes and Goldsmith have a point, of course, but only because of the mistakes made by Obama, who put all the cards back on the table last May when he should, instead, have insisted that prisoners would either be released or put forward for federal court trials. The refusal to stick to unassailable principles has been nothing short of poisonous, and the result, sadly, is that justice itself has become nothing more than a commodity, to be bartered and traded by those who shout the loudest.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as, “Will Obama Sell Out on Terrorist Trials?”

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009), Chaos and Confusion: The Return of the Military Commissions (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010).

7 Responses

  1. Connie says...

    Two things:

    One, since you brought up ” persistent outbursts (as happened with Khalid Sheikh Mohammed during Military Commission hearings at Guantánamo in 2008), that Aafia Siddiqui, the Pakistani woman who was recently tried and convicted in New York on terror-related charges, was removed from the courtroom after the first day because of her outbursts and interruptions.” Yet, Andy, having sat through that whole trial, there seemed to have been something else going on…she was allowed and then removed on a number of occasions during pretrial hearing and during the 11-12 day trial…and really seemed to me a way to get her NOT to say certain incriminating things….also she was treated by court & by media as if she were mentally unfit to make sense yet her day of testimony was unusually sane and very incriminating of many including those who testified she shot at soldiers… YET a case in point that even in a civilian trial, the ruling can ignore the facts presented & be unjust…

    Two: So, Andy & readers (Candace Gorman if here?) given how many have been convicted in civilian court already (which is way higher than percentage thought to be actually guilty even by a number of military judges, generals etc.) why are all progressives not questioning that detainee/prisoners tortured (most) who testify will be treated similarly to Aafia while those who would be tried in military court (at least in our current US mode of comparisons -although not ideal rule of law way) that those folk may surprisingly be treated more fairly…fewer “found guilty” and worthy of life without parole or worse?

    Conclusion: I keep looking at all the military officials who KNOW of all the torture and have been disgusted and spoken out…and how Judge Berman who rules his court is about ready to try Hashmi in April and if he’s anything like he was with Aafia, he will once again bring great despair or worse to Pakistanis IN that suffering nation as well as those living in US – particulary New York…

    People don’t seem to get the ramifications…

    What in the world should we REALLY be doing about these civilan kangaroo courts?

    No doubt recalling KSM’s behavior at Guantánamo, Holder told the Committee, “Article III Judges are used to dealing with people like this and know how to deal with them,” whereas judges in Military Commissions “don’t feel as comfortable clamping down on a defendant who’s trying to do that.”

  2. T says...

    Here’s a suggestion that might get lots of comments.

    You’ve been doing this important work for a long time. Yet, torture continues. And apparently many fall into the “if you have nothing to hide then shut up” catagory.

    I know a few others have done pieces on this. But why not ask, if so many believe that intl. law DOES mean something, then why have so many blown off acting on this?

  3. Connie says...

    T, I am feeling similarly frustrated…

    In US am reminded often that people on “inside” for awhile of the Bush administrations who went unnamed said the whole strategy was to keep concerned rights and others busy on the “next story” so that they would not pursue the last too deeply.

    Seems that’s what’s still happening and given how long it takes world to try and convict criminal nation leaders like Pinochet…we have to expect we could be waiting a long long time…

    Meantime, what I’d like to see happen more and more is prevention as you have spoken so well..

    Question is what’s the best way? Let’s explore..

  4. Connie says...

    Keeping files for ready access and getting word out on verifiable proof may be important down the road?


  5. TraVotez says...

    […] (32)  Cuando triunfa la retórica buen sentido: la lucha contra el Partido Republicano de guardia producti… […]

  6. Fahad Hashmi And Terrorist Hysteria In US Courts says...

    […] have a proven track record of successfully prosecuting terrorists. This is a powerful argument against the Commissions, of course, which look set to face innumerable unknown and unexpected hurdles as they stumble back […]

  7. In the Case of Ahmed Khalfan Ghailani, Torture Apologists Are Everywhere « Margot B. News says...

    […] point of view, which is based on ideology rather than common sense, relies on the false assertion — essential to the Bush administration’s “War on […]

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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