Dec 5, 2013
Guantanamo Prisoner’s Case Demonstrates Unfairness of Military Commissions
Posted on Jun 19, 2013
The piece first appeared on Truthout.
The issue of terrorism has been front and center in the national discourse since 9/11. Guantánamo has become a symbol of US hypocrisy on human rights. Lawyers handling the criminal case of Guantánamo prisoner Abd al-Rahim al-Nashiri argued several pre-trial motions last week. But just as they raised some fascinating legal issues, the hearings revealed the basic unfairness of the military commissions for adjudicating criminal cases. People can be put to death after a trial that affords a reduced level of due process.
Defense motions raised issues of whether the Sixth Amendment’s Confrontation Clause applies in military commissions; whether a military commission can legally try defendants for the crimes of conspiracy and terrorism; whether the government has been eavesdropping on confidential attorney-client communications; whether the accused can be excluded from pre-trial sessions in which classified information is discussed; whether the defense is entitled to parity with the prosecution in subpoenaing witnesses; and how much discovery the prosecution must turn over to the defense. Judge James Pohl took the motions under advisement. That means he postponed ruling on them until later.
In 2006, in Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions President Bush established in 2001 because their procedures did not comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Court ruled that members of al-Qaeda are entitled to the protections of Geneva’s Common Article 3, which includes being protected from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Hamdan Court also said the commissions must follow procedural rules that basically parallel courts-martial proceedings under the UCMJ. Yet the Military Commissions Act of 2009 (MCA) [sec. 948b] says the UCMJ “does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter.” It declares that this chapter is “based upon the procedures for trial by general courts-martial under [the UCMJ], ” but it also provides that “[j]udicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions.”
The Defendant’s Right to Confront Witnesses Against Him
The defense sought a ruling from the judge that the Confrontation Clause of the Sixth Amendment to the Constitution applies in this military commission in which the accused can get the death penalty. In Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees have a constitutional right to habeas corpus, since, although Guantánamo is on Cuban soil, the United States exercises complete jurisdiction and control over the US base there. Thus, the al-Nashiri defense argued, other constitutional rights, including the right to confrontation, apply in military commissions held at Guantánamo.
The Confrontation Clause gives the accused in a criminal case the right to confront and cross-examine witnesses against him. When the prosecution presents hearsay statements of unavailable witnesses, the accused is denied the right of cross-examination. As Justice Scalia wrote in the leading Confrontation Clause case, Crawford v. Washington, the Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
Hearsay is a statement that was made out of court but later offered at a hearing to prove the truth of the matter asserted in the statement. Although hearsay is presumed inadmissible unless it fits one of the exceptions in federal courts, the Military Commission Act (MCA) makes it easier to secure the admission of hearsay in military commission trials.
The Federal Rules of Evidence contain several exceptions to the ban on hearsay evidence, and many of them require that the person who made the hearsay statement be unavailable to testify at the present hearing. But when the proponent of the hearsay statement wrongfully procures the unavailability of the absent witness, the exception won’t be available as a vehicle to admit hearsay statement. This is called forfeiture by wrongdoing.
The prosecution wants to use the testimony of Fahd al-Quso against al-Nashiri. Al-Quso is unavailable to attend the trial because the US government killed him in a drone strike last year in Yemen. Thus it could be argued that the prosecution (the government) wrongly procured al-Quso’s unavailability by killing him.
In Giles v. California, the Supreme Court held that in order for forfeiture by wrongdoing to prevent the admission of a hearsay statement, the proponent of the statement must have killed the witness to prevent him from testifying. Thus, the defense will have to prove that the government killed al-Quso to prevent him from testifying against al-Nashiri.
The defense argued that the prosecution’s evidence will seemingly be full of unreliable double- and triple-hearsay (for example, “he said she said that he said X”). FBI reports in these cases typically contain hearsay statements of witnesses from Yemen, Afghanistan or Pakistan who are not available for trial.
The Constitution governs courts-martial and the evidentiary rules courts-martial use largely follow the Federal Rules of Evidence. Thus, it should be a no-brainer that the Constitution’s Confrontation Clause would apply in military commissions. Nevertheless, Judge Pohl seemed inclined to decide on a case-by-case basis.
The Crimes of Conspiracy and Terrorism Are Not Triable Under the Law of War
The defense asked the judge to dismiss the conspiracy and terrorism charges against al-Nashiri. Military commissions were established to try war crimes. The commissions are bound by Congress’ power to “define and punish ... Offenses against the Law of Nations.” In order to vest a military commission with jurisdiction over an offense, it must be an established offense of that subset of the law of nations known as the law of war.
Conspiracy is not part of the law of war. A plurality of the Supreme Court stated in Hamdan that conspiracy is not a war crime under the traditional law of war. Terrorism is also absent from the law of war. In Tel-Oren v. Libyan Arab Republic, the DC Circuit Court of Appeals affirmed that terrorism itself is not an offense against the law of nations. The Second Circuit reaffirmed the lasting force of Tel-Oren in United States v. Yousef.
Salim Hamdan was tried under the Military Commissions Act of 2006. He was acquitted of conspiracy but convicted of providing material support for terrorism for acts done between 1996 and 2001. He appealed and, in 2012, in Hamdan II, a three-judge panel of the DC Circuit Court of Appeals reversed his material support conviction, holding that the 2006 MCA did not intend to criminalize pre-2006 conduct that was not considered a violation of the international laws of war. The panel concluded that material support was not a violation of the international law of war.
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