Earlier this week, President Barack Obama reiterated his interest in shutting down the prison at Guantanamo Bay: “I’ve asked my team to review everything that’s currently being done in Guantanamo, everything that we can do administratively, and I’m going to reengage with Congress to try to make the case that this is not in the best interests of the American people.”
President Obama isn’t alone in being troubled by goings-on at Guantanamo. This morning I attended an interesting panel discussion where a retired admiral, the former Judge Advocate General of the Navy, spoke out in favor of closing Gitmo….
The discussion, sponsored by Human Rights First (formerly known as the Lawyers Committee for Human Rights), took place at the headquarters of Bloomberg (which has amazing skyline and Central Park views). Our host was Daniel L. Doctoroff, a board member of Human Rights First, current CEO of Bloomberg, and former deputy mayor for the City of New York (and a lawyer too, a graduate of Chicago Law).
The event — timed to coincide with the publication of Jess Bravin’s new book, The Terror Courts: Rough Justice at Guantanamo Bay (affiliate link) — featured the following panelists:
- Jess Bravin, Supreme Court correspondent, Wall Street Journal
- Daphne Eviatar, senior counsel, Human Rights First
- John D. Hutson, dean emeritus of the University of New Hampshire School of Law and former Judge Advocate General of the Navy
- Elisa Massimino, president and CEO, Human Rights First
Bravin provided an overview of the history of military commissions. In the wake of 9/11, there was no big push for the use of military commissions from either the public or government agencies. Rather, the idea of using them had been percolating in some legal circles, perhaps to try Lockerbie bombing defendants, and the concept got revived after 9/11.
The primary push for military commissions came from White House lawyers in the Bush Administration who were interested in strengthening executive power. But the project ultimately floundered, according to Bravin, partly because of inadequate follow-through and a failure to focus on how such commissions should be structured and operated. The use of military commissions wasn’t helped by Hamdan v. Rumsfeld (2006), which dealt a blow to aggressive theories of executive power. Subsequent acts of Congress tried to retroactively authorize the use of military commissions, but their status is still messy — “a legal Superfund site,” as Bravin put it.
Speaking after Bravin, John Hutson explicitly stated that the military commissions should be abolished. “Terror courts are an abomination,” the former Judge Advocate General of the Navy declared, “and we ought to shut them down.”
Hutson, a retired admiral, hasn’t always felt this way. He started out as a supporter of military commissions. But after debating the issue on NPR with Elisa Massimino, as well as further reflection and research, he changed his mind. He is now of the view that detainees should be prosecuted in our federal courts, which represent the “gold standard” in terms of global justice.
One interesting point Hutson made: prosecuting detainees in military courts gives them a status they don’t deserve. The ones who are guilty of acts of terrorism are not noble warriors, he argued. They are “criminals” and “thugs,” and they should be treated as such, through prosecution in civilian rather than military courts.
Hutson said that military commissions should be used when other courts are unavailable, time is of the essence, and you’re on the battlefield. These conditions do not apply to the Guantanamo Bay detainees. Federal district courts hear terrorism cases constantly, and they do so ably; there’s no reason to think they couldn’t handle cases coming out of Guantanamo.
And the military commissions are not going well, according to Daphne Eviatar, who has made multiple visits to Guantanamo Bay. The proceedings before military commissions have yielded a paltry seven convictions, and four of the seven convicted have already been released.
The prosecution of the five 9/11 defendants before a military commission has been a farce, Eviatar argued. The chaotic arraignment took 13 hours, due to disorder in the court and time wasted on collateral issues, and was “a mockery of justice.” The 9/11 defendants can and should be tried in civilian court, where no federal judge would tolerate what the military commission has permitted.
If you’d like to learn more about these issues, check out Jess Bravin’s new book, The Terror Courts. Dean Hutson gave it strong praise at the panel: “It reads like a David Baldacci novel, except it’s all true and you know all the characters — even if you may not like them.”
UPDATE (2:50 p.m.): Here’s Bravin in conversation with Mike Sacks of HuffPost Live:
The Terror Courts: Rough Justice at Guantanamo Bay [Amazon (affiliate link)]
On Guantanamo, Obama must act now [New York Daily News]
The Guantánamo Stain [New York Times]