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There Is No Fix For the Military Commissions

ICE Graveyard 21/04/2016 Daphne Eviatar

The problem with the Guantanamo military commissions is not the defendants' right to appear at hearings in their own trial. It's that the government keeps meddling in the cases in such cockamamie ways that they have to adjourn for months at a time while the lawyers scramble to figure out how to respond. And that's just the tip of the iceberg.

The Pentagon is now proposing to speed up the progress of the military commissions, including the 9/11 case - which most people probably don't realize is still pending in pretrial hearings nearly 15 years after the attacks - with a series of procedural proposals that would deny defendants the right to appear at hearings in their own case (substituting a video appearance instead), and let multiple judges unfamiliar with the case attempt to rule on the various issues that arise.
This series of procedural "efficiencies" the administration is proposing to Congress - which would have to amend the Military Commissions Act for it to happen - is a little like putting a band-aid on a patient who needs open-heart surgery. It's irrelevant to the real problems of the commissions: their lack of credibility, absence of established rights and procedures, and the constant interference by U.S. intelligence agencies. It's also a suspicious attempt to change the rules in the middle of the game: the defendants have already been charged with capital crimes and their cases have proceeded - albeit at a snail's pace - for more than three years under those rules. That those rules haven't all worked out well for the government, which has had to expose facts about the defendants' torture and still doesn't have a trial date, is not a legitimate reason to change them.

The new proposal also creates major new problems, like a potential violation of the U.S. Constitution's Confrontation Clause, which guarantees defendants the right to confront their accusers. That change promises to ensnare the cases in more litigation which would get them tangled up in appeals for years, stalling progress and the certainty of any verdicts that much longer. (Significantly, it remains unclear which parts of the U.S. Constitution even apply at the Guantanamo military commissions.)

The real problem with the Guantanamo military commissions is that there's no legitimate reason for them to exist. Each of the cases charged in a commission could be brought in a civilian federal court on U.S. soil authorized by Article III of the U.S. Constitution, which guarantees defendants basic rights, like attendance at their own trials and competent defense counsel, while ensuring the credibility of the process of bringing suspected terrorists like the 9/11 defendants to justice. Those civilian courts have successfully tried hundreds of terrorists since the September 11 attacks, without incident.

Regardless of what one thinks of the rights of five men accused of that heinous crime, the reputation of the United States justice system - and now of this U.S. president - is at stake. President Obama will be hard-pressed to lecture other countries on providing legitimate trials and real justice if he can't demonstrate that the United States provides that to its own accused, including in what is arguably the most important criminal case of his tenure.

President Obama may not be able to shut the Guantanamo Bay detention center down without the cooperation of Congress before the end of his second term. But he is the ultimate commander of the military commissions. He has acknowledged repeatedly that they've been a costly failure. He should use his power to close them down.

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