We are deeply disappointed at President Obama’s passive embrace of the idea of trying terrorism suspects before military commissions, which serve as a secondary system of justice for the Arab and Muslim men subject to them and have been repeatedly discredited. Their inevitable failure will scar his legacy and cost the United States foreign popular and diplomatic support that is essential to legitimate law enforcement efforts against terrorism.

 

The use of military commissions will only lead to further delays in bringing detainees to trial. Like any new system, it will continue to fall prey to growing pains and missteps, and years of appeals after trial to sort through the vast array of legal uncertainties raised by the commission system. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague. Flaws such as the admissibility of unreliable hearsay evidence persist.  And the current military commission statute includes “conspiracy” and “material support” as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission. The overall lack of transparency of the commissions will also undermine any real confidence in their results. 

 

The criminal justice system in the United States, by contrast, has undergone hundreds of years of testing and refinement.  The federal courts have time and again proven themselves capable of trying terrorism offenses – even those involving sensitive intelligence evidence, such as the embassy bombings in East Africa and the first attack on the World Trade Center in 1993.

 

The amended 2009 version of the military commissions act includes a ban, as it should,  on statements procured by torture, cruel, inhuman and degrading treatment; in that respect, there is no advantage for the administration to bringing cases in one system rather than the other. It remains to be seen whether the defense department will attempt to exploit other potential loopholes in the statute for purposes of evading the spirit of the administration’s official condemnation of torture – for example, by attempting to introduce coerced statements made by witnesses other than the defendant where the coercion falls short of torture and other abuses listed in the MCA statute. 

 

Any commission prosecutions of current Guantanamo detainees would inevitably pose a retroactivity problem by dint of the fact that “conspiracy” and “material support” were never traditionally-recognized war crimes. Since almost all the Guantanamo prisoners were captured after the original 2006 MCA was passed, application of these new “war crimes” would violate the ex post facto prohibition on retroactive criminal laws in the Constitution. Because, however, such claims might only come to the federal courts after trials and military appeals were complete, it might be years before any such convictions were thrown out.

 

We again call on President Obama to repudiate both the war, rather than criminal, paradigm of fighting terrorism and the military commission system itself by prosecuting in federal courts those Guantanamo detainees it intends to charge.