Military commissions: fair or foul?

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Hartmann states that he directed me to evaluate cases — including evidence, charges and preparation — more carefully. Had it been as simple as that there would be no problem, but instead, convening authority Susan Crawford's staff, including her legal advisor, inserted themselves into these prosecutorial matters. Hartmann is right that his actions were deemed permissible by an independent panel, but I respectfully disagree. Their conclusion was based on analogy to ordinary court-martial practice in which the convening authority (the commanding officer) and his or her lawyer (the staff judge advocate) have an active role in the court-martial process.

But even where courts-martial are concerned, active involvement has been criticized. A report (PDF)prepared for the National Institute of Military Justice in 2001 said:

(T)he far-reaching role of commanding officers in the court-martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces.… The combined power of the convening authority to determine which charges shall be preferred, the level of court-martial, and the venue where the charges will be tried, coupled with the idea that this same convening authority selects the members of the (jury) to try the cases, is unacceptable in a society that deems due process of law to be the bulwark of a fair justice system.

Involvement is defended on the grounds that the convening authority, as the commanding officer, is responsible for the mission readiness of his or her organization, which depends on the morale, good order and discipline of the troops. The accused on trial in a court-martial is one of the convening authority's own and the disciplinary action is intended, in large part, to promote good order and discipline. That justification is subject to criticism in court-martial practice; it is nonexistent in military commissions practice. Crawford is not responsible for the mission readiness of Al Qaeda, and she owes no duty to Osama bin Laden. Military commissions are about retribution, not readiness. To permit the convening authority's staff to intervene in prosecutorial decisions perpetuates the perception that military commissions are rigged to secure convictions. The prosecutors in the U.N.-sanctioned war crimes courts in Sierra Leone and Cambodia are assured independence. Prosecutors in military commissions conducted in the name of the United States should be too.

Hartmann claims that the military commissions are moving forward "fairly and transparently," and he notes that the accused will be allowed to review everything that goes to the jury. Permitting the accused to see the evidence — a right that only came at the insistence of Congress — goes to the "fairly" part, but not the "transparently" part. He and I appear to have different perceptions of what transparency means. In my view, the trials will not be transparent if the courtroom doors are closed to the media and other observers for significant portions of the proceedings. Telling the world, "trust me, if only you had seen what we did in court today, you would have been so impressed," is doomed to failure.

Working through the classification review process in an effort to get evidence declassified for use in an open proceeding is tedious and time-consuming. My prediction is that you will see charges brought against some of the most notorious detainees very soon, for whatever reason, and before all of the evidence has gone through classification review. That will get some noteworthy cases into court, but largely behind closed doors and out of public view. That is not transparency.

Hartmann says the military commissions are consistent with an American military justice system that is the envy of the world. Apparently he's privy to some worldwide polling data I haven't seen, because it appears to me military commissions have created worldwide enmity, not envy. To overcome that, there must be two assurances from the highest levels: One, that evidence derived from waterboarding will not be introduced before a military commission, and two, that all reasonable efforts to keep the proceedings open to the media and other observers will be exhausted before closing any portion of any trial. That's the minimum American justice demands.