Outside the Law
Tom Durkin April 22, 2013 - 11:30am
The Terror Courts
Rough Justice at Guantánamo Bay
Yale University Press, $30, 448 pp.
Jess Bravin’s The Terror Courts: Rough Justice at Guantánamo Bay traces the vexed history of the military commissions at Guantánamo, established to try terror suspects captured in Afghanistan and elsewhere. Bravin, recipient of the American Bar Associations’s Silver Gavel Award for his coverage of law and terrorism after 9/11, is the Supreme Court correspondent for the Wall Street Journal and a lawyer by training. Told largely from the perspective of Marine Lt. Col. Stuart Couch, a former commissions’ prosecutor who courageously brought rudimentary principles of professional ethics to the process, The Terror Courts details the Defense Department’s systematic mishandling of the commissions’ investigations and prosecutions, including incessant delays, political cronyism, poor lawyering, agency distrust, and—most important—a complete lack of CIA cooperation. This book will stun anyone who naïvely believes that the Justice Department controls terrorism prosecutions in this country.
Coming as they do at the start of the second Obama administration, Bravin’s questions are both timely and poignant. Though as a candidate in 2008, Barack Obama promised to close Guantánamo, and as president has asserted that the camp “weakens our national security by wasting resources, damaging our relationship with key allies, and strengthening our enemies,” he evidently felt he had no choice but to sign a defense bill in January limiting his authority to transfer Guantánamo detainees to foreign countries or the United States. The finality of his retreat on Guantánamo became obvious soon thereafter, when he reassigned Daniel Fried, the special envoy tasked with closing the camp, and chose not to replace him.
At the same time, 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his four alleged accomplices popped back into the news with the resumption of pretrial hearings in the commissions. As if to prove Bravin’s charge that the military tribunals are inept, the KSM hearings were abruptly sidetracked by the odd issue of who cut off the session’s audio and video feed for three minutes while KSM’s lawyer was in mid-sentence. Amid rumors that the CIA was behind the censorship, Col. James Pohl, the chief military judge presiding over the case, sheepishly admitted that he had no idea who had done it, and ordered an inquiry into what “outside source” might have had its hand on the courtroom’s controls. It was subsequently revealed that supposedly privileged lawyer-client conversations had been overheard, but it is still not clear who has monitored those conversations.
These embarrassments came fast on the heels of another controversy, which arose when Chief Prosecutor Gen. Mark Martin’s request to dismiss the conspiracy count in the 9/11 charging document was rejected—a request that would be routinely granted in any normal U.S. courtroom. And soon thereafter, the U.S. Court of Appeals for the District of Columbia further embarrassed the Defense Department by reversing one of the commissions’ few earlier successes, the 2008 conviction of Ali Hamza al Bahlul, Osama bin Laden’s publicist and videographer. Al Bahlul, serving a life sentence, was one of only two detainees convicted in a jury trial in the military commissions to date. The D.C. Circuit agreed with Gen. Martin that conspiracy was not a charge recognizable under international law as a war crime, and thus not a proper subject of a military tribunal.
Though The Terror Courts is more a political reporter’s story than a lawyer’s story, Bravin ably dissects the circuitous case of Salim Hamdan, bin Laden’s driver, from its fits and starts in the early commissions, through the landmark Supreme Court opinion invalidating the Bush commissions, to Hamdan’s eventual trial and remarkably light sentence. He also shows a lawyer’s grasp of other notable cases such as those of David Hicks, Mohamedon Ould Slahi, Mohammed al-Qahtani, Ahmed al-Darbi, and the teenage detainee Omar Khadr. The book sheds a revealing light on how we got into this mess in the first place; perhaps more important, it provides insight into how, at least according to Bravin’s reporting, Obama succumbed to pressure from intelligence communities and the White House political apparatus, as well as to the lure of unlimited executive authority, in failing to follow through with his promise to close the camp and bring KSM’s case to federal criminal courts.
In delineating these events, Bravin paints a clear picture of how the political operation of Chief of Staff Rahm Emanuel ran roughshod over the highly regarded White House counsel, Greg Craig. Craig advocated consigning the military commissions, in Bravin’s words, to “the list of ideologically driven policy failures that future historians would use to define the Bush era.” Significantly, Craig had the support of Marine Col. Bill Lietzau, who had designed the initial commissions for the Bush Administration. Bravin reports on a memo in which Lietzau, by then a member of Obama’s National Security Council staff, insisted that “whatever value the commissions may have played after 9/11 had disappeared” and that “it was time to pull the plug.” Yet the political calculus prevailed within the administration. Bravin provides the interesting insight that holdover Defense Secretary Robert Gates was “unwilling to surrender [his] power to try prisoners to the Justice Department”—and that Obama, in turn, “was reluctant to overrule a cabinet officer who contributed so much to his own credibility on national security.”
To this embarrassing turn of events for Obama, Bravin adds the fact that after Attorney General Eric Holder sent the KSM case back to the military commissions, the State Department’s chief lawyer, former Yale Law School Dean Harold Koh, did all he could do to derail the commissions. According to Bravin, Koh convinced his boss, Secretary of State Hillary Clinton, to argue during a high-level national security meeting in August 2011 that restarting the trials at Guantánamo would undermine international cooperation on counterterrorism efforts. Clinton and Koh’s complaints fell on deaf ears, and in the end the State Department had to accept the consolation prize of getting the administration to ask the Senate to ratify agreements expanding protections to the detainees under the Geneva Conventions. Whatever Obama’s failings, it should be noted that Congress made it impossible for him to close Guantánamo, and an even broader if ill-informed public outcry at both the federal and local level derailed the effort to try accused terrorists in the federal courts.
The Terror Courts would have profited from paying attention to another hidden fraud at Guantánamo—the fate of the remaining “low value” detainees. By focusing solely on the military commissions, Bravin implies that the commissions, bad as they are, at least provide some kind of due-process alternative to the remaining Guantánamo detainees; indeed, one might think that these detainees are simply waiting for prosecutors to get around to giving them their day in court. But the sad fact is that most of the “low value” detainees—a largely hapless lot of mujahideen swept up, or sold off, from the battlefields of Afghanistan more than eleven years ago—sit woefully mired in a legal black hole. Bravin does touch on a 2005 report indicating that only thirty or fewer of the five-hundred-fifty men then detained had “real prosecutorial value,” but he does little to clarify what happened to the many remaining detainees, not lucky enough to be prosecuted, who are now stuck in permanent indefinite detention. Their fate is at least as much of a disgrace as the scandal Bravin lays at the feet of the military commissions.
But it would be unfair to criticize Bravin for not writing a different book. The Terror Courts provides much-needed insight into the maddening history of the military commissions, and provides a tirelessly reported, clearly written depiction of these bastardized, superfluous, and unnecessary tribunals. Bravin concludes that adding a new and costly alternative to the already proven systems available in federal courts or regularly established Courts Martial was both unnecessary and futile. As he correctly points out, “all of the Guantánamo detainees prosecuted by the commission could have been tried in the federal court, and the federal judiciary’s track record suggests that they likely would have been convicted more rapidly and received stiffer sentences.”
So why weren’t they tried in federal court? This is perhaps the most troubling question for any American concerned with civil liberties. The answer will not please anyone clinging to the illusion of justice. The Terror Courts makes a persuasive case for the unsettling proposition that the intelligence communities of our national-security state chose to bypass the fundamentally fair courts our Constitution has always required in order to maintain control over the proceedings for their own protection. In doing so they were tragically abetted by a conflicted president. Bravin chides Obama for giving the aptly labeled “terror courts” his bipartisan imprimatur, and predicts that Obama’s endorsement of the Bush administration’s decision to use military tribunals, which he had criticized on the 2008 campaign trail, “virtually ensures” that the military tribunals “will be a fixture of American law for years to come.” Bravin might also have pointed out that responsibility for this failure is shared equally by Congress and the American people as a whole.
A pithy vignette sums up this book’s incisive judgment of our military tribunals. Following the conclusion of one of the Hamdan proceedings, Bravin describes the court participants—“military officers and liberal activists alike”—at the Guantánamo air strip, grumbling as they wait to get through the single metal detector for the return flight to Andrews Air Force Base. He likens the participants to “actors out of costume, those who played antagonists in the courtroom now chitchat[ting] like backstage pals.” Noting that “nearly the entire commissions’ apparatus, people and equipment, was packed onto the military transport,” Bravin sums up the picture of the commissions as “a show on the road, a traveling circus.”
Having myself been part of that road show more times than I care to recall, I know—alas—that nothing could say it better. Are you among the vast majority of Americans who have a hard time believing that our country would attempt to execute criminal defendants by trying them in a traveling circus? Then read this book.