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Military officers love their acronyms. So when the Air Force colonel in charge of defending accused terrorists in Pentagon-run military trials interviewed lawyers for his team, he introduced them to VUCA — Volatile, Uncertain, Complex, and Ambiguous. “I told my folks if they weren’t prepared for such an environment, this wasn’t the best place for them,” recalls Will Gunn, the former chief defense counsel who has since retired from the military. It was a fair warning for the lawyers, who were about to venture into a system that amounted to an elaborate legal experiment. When the White House announced plans to try suspected terrorists before military commissions in November 2001, the aim was to give those responsible for the Sept. 11 terrorist attacks — possibly even Osama bin Laden — a measure of swift justice, unencumbered by the usual rules concerning procedure and evidence. But to date, there have been no cases brought against the leaders of al Qaeda. No trials, no verdicts, no punishments. While it may still be too early to call the experiment a flop, after four years of controversy, lawsuits, and infighting, it certainly has not been a success. Some of the setbacks have been public, such as the 2004 Supreme Court ruling that federal courts could consider challenges brought by prisoners at the U.S. naval base at Guant�namo Bay, Cuba. That decision opened the door to lawsuits from commission defendants asking the federal courts to block their commission trials — an opening defense lawyers have eagerly exploited. But other problems facing the commissions have come to light only recently, through the disclosure of internal Pentagon documents. One such document — a Defense Department inspector general report from April 2004 obtained by Legal Times under the Freedom of Information Act — details how allegations of abuse at Bagram Air Force base in Afghanistan came to the attention of military commission prosecutors, and how the handling of the claims led to deep divisions among lawyers on the prosecution team. Next month the Pentagon plans to begin proceedings against David Hicks, an Australian national who has been held at Guant�namo Bay since early 2002. Hicks appeared before a military panel to face war crimes charges last August; however, recent rule changes require that those hearings essentially start over. After all the false starts, Hicks’ defense lawyers complain that their client is a human guinea pig for a legal system that is inventing the rules as it goes along. “We are in a government do-over,” says Maj. Michael Mori, a Marine Corps lawyer representing Hicks. “They have not fixed any of the fundamental problems with the commission system.” Administration officials concede that the military commissions have taken longer to get off the ground than originally anticipated. But they insist that the commissions meet international due process standards and present a desirable alternative to trying foreign terrorists in domestic courts. What’s more, the new rule changes bring the commission structure closer to that of a traditional military court and raise the bar for the use of secret evidence by the prosecution. “We stand up very well when you compare us with international tribunals,” says Gen. Thomas Hemingway, an adviser to the commission appointing authority. “There are some who have been too suspicious of this process, particularly those who are unfamiliar with military judicial proceedings.” In fact, some of the system’s toughest critics have been military lawyers themselves, including Retired Army Gen. John Cooke, a former chief judge on the Army’s Criminal Court of Appeals. Cooke calls the rule changes an improvement but says that they may come too late. “The administration is trying to dig themselves out of an enormous hole,” Cooke says. “I think it would be very difficult now for the commissions to have credibility.” THE ARC OF JUSTICE
Going Nowhere: A Commissions Chronology
Nov. 13, 2001: President George W. Bush issues order authorizing military commissions to try suspected terrorists. March 21, 2002: Pentagon releases procedures for military commission trials. July 3, 2003: President Bush identifies six detainees subject to trial by military commission — two Brits, one Australian, two Yemenis, and a Sudan national. Aug. 2, 2003: The National Association of Criminal Defense Lawyers resolves that it is unethical for attorneys to represent those accused before military commissions, because the conditions imposed by the Pentagon make it impossible for counsel to provide adequate representation. Oct. 30, 2003: Then-chief prosecutor Army Col. Frederic Borch III indicates that commission trials are “imminent.” Feb. 24, 2004: The Pentagon charges the first defendants before military commissions. March 11-15, 2004: E-mails sent by two Air Force lawyers assigned to the military commission prosecution team describe serious problems with the prosecution effort. April 30, 2004: The Defense Department inspector general concludes that prosecution problems do not constitute criminal or ethical misconduct. June 28, 2004: The U.S. Supreme Court rules that Guant�namo Bay prisoners can challenge their detentions in federal court. Aug. 24, 2004: The first military commission proceedings convene at the U.S. Naval Base at Guant�namo Bay, Cuba. Nov. 8, 2004: Military commission hearings halt abruptly when the U.S. District Court for the District of Columbia rules in a case brought by Salim Ahmed Hamdan that the procedures for military commissions are illegal. January 25, 2005: Under pressure from the British government, the Pentagon releases two British nationals set to be tried by military commission. July 15, 2005: The U.S. Court of Appeals for the D.C. Circuit reverses a district court ruling and upholds the use of military commissions to try Hamdan. Supreme Court nominee John Roberts Jr. is criticized for participating in the case while interviewing with administration officials to fill the chief justice vacancy. Aug. 8, 2005: Hamdan’s lawyers seek Supreme Court review of D.C. Circuit ruling. Aug. 31, 2005: Pentagon publicizes changes to military commission procedures. Nov. 18, 2005: The military commission trial of David Hicks is scheduled to restart at Guant�namo Bay.

In defense, Pentagon officials say that building a court system from scratch is no easy feat. The military commissions, authorized by President George W. Bush on Nov. 13, 2001, were modeled after a tribunal used during World War II for the trial of eight Nazi saboteurs captured on U.S. soil. The Supreme Court upheld those proceedings in 1942 in the well-known case of Ex parte Quirin. White House and Justice Department lawyers believed that close adherence to the Quirin precedent would bolster the legal legitimacy of the commissions. But the five-page document authorizing the commissions gave scant guidance to Pentagon lawyers responsible for making the directive into a workable set of rules and procedures. It also caused concerns for uniformed military lawyers, who felt the system the White House wanted simply didn’t belong in the modern era. In March 2002, the Pentagon published its first set of regulations, which established that defendants would be presumed innocent and be allowed to attend some, if not all, portions of their trials. Under the rules, a unanimous vote of commission members would be required to impose a death sentence. Such protections were hard won, says one Army lawyer involved in drafting the rules, who spoke on the condition of anonymity. “There was a lot of tension with the DOD general counsel’s office,” the lawyer says. “The Army wanted to give more rights to detainees. Our recommendations weren’t always followed.” Those drafting the rules say there was a strong sense of urgency about the mission. Col. William Lietzau, a Marine Corps lawyer who worked on the regulations, says he left his previous job in San Diego on Jan. 7, 2002, and arrived in Washington for his assignment at the Pentagon on Jan. 8. He passed up flight scheduled for a few days later, fearing that might he might miss out on crucial developments. “I assumed they had a trial ready to go, and I raced out there so I wouldn’t miss it,” Lietzau recalls. “Then I was frustrated that it took until March to put out the first basic rules. Now I realize how rapid that was in the overall picture.” Human rights advocates and criminal defense attorneys, who had been critical from the outset, continued to rail against the commissions even after the rules were issued. Many of their objections centered on the use of secret evidence and the lack of an independent appeals process. Commission rulings are reviewed not by a court but by a panel hand-picked for the task by the secretary of defense. In effect, critics argue, that system turns Donald Rumsfeld into the accuser, jailer, prosecutor, judge, jury, and executioner. COMMISSION BY OMISSION Two years after the president’s order, the administration finally appeared to be moving toward holding trials. By early 2003 the Pentagon had assembled its prosecution and defense teams and was preparing its first charges. In May, then-Deputy Defense Secretary Paul Wolfowitz took charge of the commissions. Shortly thereafter, Bush identified six detainees as eligible for the tribunals, setting the process in motion. By that October, then-chief prosecutor Army Col. Frederic Borch III felt comfortable telling lawyers at an American Bar Association breakfast briefing that the first trials were imminent. In some quarters of the Pentagon, however, the mood was much less optimistic. The president’s designation of two British nationals as candidates for commission trials had sparked unexpected tension between the United States and its closest ally. The White House did not want to appear to be giving special treatment to detainees from Western nations, so British Prime Minister Tony Blair’s sudden insistence on keeping his citizens from the commissions put the administration in an awkward bind. (Talks between the United States and Britain resulted in the release of British nationals Feroz Abbasi and Moazzem Begg in January 2005. In a bid to escape his trial, Hicks is now seeking British citizenship.) Several lawyers involved in the process say that as preparations began for the war in Iraq in late 2002, they sensed that there was no longer a strong appetite among top administration officials to have the commissions at all. It wasn’t due to any legal qualms. Rather, Ruth Wedgwood, an international law professor at Johns Hopkins University who has advised the Pentagon on commission procedures, says that Pentagon leaders came to realize they could hold suspects at Guant�namo Bay indefinitely — with or without trying them for war crimes. “Initially, many people instinctively thought, We have to figure out how to try these people. Over time, everyone in government, outside of government, in Congress, came to realize we didn’t need to try criminal cases to hold combatants for the duration of the hostilities. Military commissions were no longer essential,” Wedgwood says. In fact, Wedgwood says that compared with other procedures developed by the Pentagon, military commissions became less attractive, in part because of the risk that one might actually result in an acquittal. “The problem with the commission is that the standard of proof is 99.9 percent,” she says. “What if someone is acquitted criminally? Could you still hold them? That certainly wouldn’t play well on Al-Jazeera.” What’s more, Pentagon officials, including Wolfowitz, became increasingly absorbed by military efforts in Iraq, leaving commission lawyers to fend for themselves. “Although the order rushed out, the commissions languished,” says Scott Silliman, head of the Center on Law Ethics and National Security at Duke University School of Law. Silliman, a retired Air Force judge advocate, says that attorneys working on the commissions complained to him that their offices were understaffed and lacked basic supplies — including pencils and paper. “When you create something out of whole cloth, you have to make sure there is a budget stream and personnel,” Silliman says. “That was not a priority.” THE IG WEIGHS IN Internal DOD documents suggest that problems related to the commissions in late 2003 and early 2004 went well beyond office supplies. An April 2004 inspector general report obtained by Legal Times summarizes interviews with more than 40 individuals involved in the commission process, most as members of the prosecution team. Several of those who spoke to investigators stated that allegations of abuse at Bagram Air Force base came to the attention of senior prosecutors, who did not report it to military investigators for roughly a month. One of those involved, a Navy JAG whose name is not included in the report, said he thought it “would be appropriate to gather more information on the matter” before reporting it. Though several lawyers stated that the delay in reporting the abuse allegations caused tension in the office, investigators concluded it did not amount to criminal or ethical misconduct. Gen. Jack Rives, who is now the acting judge advocate general of the Air Force, told investigators that he was troubled by what he saw when he visited the prosecution office in February 2004, just after the first military commission charges were announced. Rives said that prosecutors seemed to have drafted charges first and were looking for evidence to support them. He also questioned the propriety of communications that had taken place between a lawyer in the prosecutor’s office and the individual selected to serve as presiding officer for the first commission. Rives believed the ex parte communication might constitute ethical misconduct. After the inspector general’s investigation, several lawyers, including then-chief prosecutor Borch, were reassigned. Borch, who has since retired from the military and is now clerk of the U.S. District Court for the Eastern District of North Carolina, declined to comment on his work as chief prosecutor. His statement to investigators, however, is summarized in the inspector general report. Borch defended his actions as chief prosecutor. He told investigators that allegations of abuse at Bagram were brought to his attention about a month after they were told to members of his team and that he immediately referred them to Army investigators. In an e-mail sent to colleagues in March 2004, Borch wrote, “I am convinced to the depth of my soul that all of us on the prosecution team are truly dedicated to the mission of the Office of Military Commissions — and that no one on the team has anything but the highest ethical principles. I am also convinced that what we are doing is critical to the Nation’s ongoing war on terrorism.” FOUR YEARS . . . AND COUNTING To those who believe in the commissions, their slow progress has been particularly frustrating. How do you defend a system with no record? “What we needed to do was have a fast trial,” says Lietzau, the Marine lawyer. “Then we’d be talking about an actual case and actual evidence instead of looking at what could happen in a hypothetical trial.” Perhaps the most serious blow to the administration’s commission plans hit on June 28, 2004, when the Supreme Court held that federal courts could consider suits brought by prisoners at Guant�namo Bay. The 6-3 ruling poked a hole in the administration’s strategy and opened the door to suits on behalf of commission defendants. Preliminary hearings in the first military commission cases had just gotten under way in November 2004 when the first federal court ruling to consider the legality of the commissions brought proceedings to a screeching halt. That decision, from Judge James Robertson of the U.S. District Court for the District of Columbia, in Hamdan v. Rumsfeld, held that the commissions did not meet basic standards of due process. Robertson specifically objected to rules allowing prosecutors to present classified evidence outside the presence of the defendant. Law professor John Yoo, who backed the military commissions as a lawyer in the Justice Department’s Office of Legal Counsel from 2001 to 2003, says the commissions have not been given a chance to work because the federal courts keep intervening. “Basically, on the law as it existed when the White House and Defense Department decided to create military commissions, we had every reasonable expectation that there wouldn’t be judges interfering or micromanaging the process,” says Yoo, who teaches constitutional law at the University of California at Berkeley. In July the U.S. Court of Appeals for the D.C. Circuit reversed Robertson’s ruling and sanctioned the use of military commissions. The Supreme Court is expected to indicate this week whether it will review the case. Meanwhile, Hicks’ lawyers have asked Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia to block the Pentagon from trying Hicks before a military commission. In a recent court filing, Hicks’ lawyers argue that the charges against the 30-year-old Australian are invalid and that four years of delay have violated his right to a speedy trial. “It’s four years after the White House said they would use military commissions,” says Mori, Hicks’ lead military counsel. “People have been in jail all that time and they’re only now bringing the first person to trial.” For his part, Mori will continue to do everything he can to see that his client never faces a commission trial — speedy or otherwise. “The military commission system will not provide a full and fair trial, whether it starts today, in a month, or in three months.”


Vanessa Blum can be contacted at [email protected].

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