The New York Times has an amazing and disturbing article by Charlie Savage on the impeccable Brig. Gen. Mark S. Martins--chief prosecutor of the military commissions system who was handpicked to reboot the tribunals and give them legitimacy before the eyes of the world.
Like so many other military lawyers, however, Martins has reached the conclusion that the laws of war make this impossible. The same question continues to dog detainee cases:
Is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?Putting that in more concrete terms,
If Iran someday shoots down an American pilot, could the Iranian military--citing Mahmoud Ahmadinejad--prosecute and execute him for an idiosyncratic war crime derived from Persian tradition rather than international law?This creates two untenable, illegal possibilities that characterize the Gitmo quagmire: ignoring reciprocity consequences of prosecuting people for offenses not recognized as international war crimes vs. continuing extralegal indefinite detention without charge.
Next week is the pretrial hearing in the case against alleged 9/11 mastermind Khalid Shaikh Mohammed and four other Guantánamo detainees--and Martins is making increasingly public the question that has plagued all iterations of the commissions for the past decade: the applicability of the Geneva Conventions and other laws of war, torture and protections for defendants in tribunals.
If Martins had myopic tunnel vision, he'd adopt the rigid interpretation that a number of uniformed lawyers have taken, namely that the rules of warfare constrain government policies.
The problem, which Martins recognizes but Attorney General Holder does not, is that federal court judges have rejected the Justice Department’s argument that charges based on laws not in existence at the time of the detainee's actions cannot be recognized as international war crimes.
Specifically, in October 2012, a federal appeals court panel (all three judges were Republican appointees) threw out the terrorism conviction of a Salim Hamdan, Osama bin Laden’s driver and bodyguard, whose case led to a landmark 2006 Supreme Court ruling striking down the Bush administration’s first version of military commissions. The U.S. Court of Appeals for the District of Columbia Circuit held that the charge against Hamdan--providing "material support for terrorism"--was not a recognized international war crime at the time of his actions.
The Hamdan decision was a huge setback to the military commissions system, reducing the chances that many other detainees at Guantánamo could receive trials because 1) nearly all of the detainees were captured well before 2006 and 2) most of their cases suffer the same defect: detainees are being held over accusations for "conspiracy" or aiding Al Qaeda generally--things that are not international war crimes (as opposed to attacking civilians or planning a specific terrorist attack.)
As my colleague and former professor Eugene Fidell aptly notes, Decisions about prosecuting detainees have become about what is feasible as opposed to what is rational. The constraints imposed by Congress are forcing officials into contorted positions which are particularly uncomfortable for military lawyers, who don’t want to get near the "third rail" of destroying reciprocity. Unfortunately, we are now in yet another Gitmo conundrum: paying attention to the reciprocity consequences of how other countries in ongoing conflicts and future wars treat captured Americans, creates and equally untenable reality: indefinite detention with no judicial review.