Guest commentator Mike McNerney, Washington College of Law American University JD '09, is a former US Air Force officer who recently visited the US base at Guantanamo Bay...
European Union (EU) nations have been intensely debating whether to accept convicted and released Guantanamo detainees. Some countries have agreed to do so, while others refuse, and the situation is fraught with legal complexities because people can freely travel among EU nations. The pressure to make a legal determination is mounting as the United States begins the process of closing Guantanamo while struggling with the legal implications of an unstable military commission system.
Recently, the National Institute of Military Justice (NIMJ) sent me to observe the military commissions at Guantanamo Bay. I joined the military in response to 9/11 and the NIMJ felt that my position as a law student and experience as a veteran would give me a unique perspective on the military commissions process.
After seeing the commissions in action, I felt firsthand what I had previously understood on a purely intellectual level. It's a powerful experience to see these commissions in person and sit in the same room with the men who changed so many American lives. Everyone in the courtroom overflows with emotion. Some rage at the unapologetic viciousness of the detainees, while some direct their frustration at the inadequacy of the commissions themselves. The Obama Administration should take care to fix the commissions in order to assuage this anger.
As Obama's top officials begin the difficult task of closing Guantanamo and reforming the military tribunal system, they should remain cognizant of four competing imperatives, each of which must be given its proper place if America is to regain its standing in the world while providing for the safety of its citizens. The first of these issues is national security, which takes into consideration the protection of Americans at home and abroad. The second is justice, which promises that the guilty will be tried and punished through a reasonable and impartial legal process. The third is expediency, which is a necessity in bringing closure to both the victims and the perpetrators of terrorist acts. The last is a stable legal structure built upon rules understood and adhered to by all parties. The Bush Administration, rather than considering the necessity of each of these four elements, decided to focus almost exclusively on security and expediency. Unfortunately, the Bush Administration's sincere desire to protect has not served us well and seems to have glossed over the imperative elements of justice and legal stability.
In the wake of 9/11, the Bush Administration's desire to convict detainees quickly at the expense of establishing a durable legal structure yielded a disorganized system that has frequently broken down. Lawyers are forced to argue based on unclear points of law and judges have almost no precedent to guide them in making their decisions. Some of the conspirators in the 9/11 case were captured in 2002 and still aren't even at the point where they can enter pleas.
Additionally, legalistic reasoning that allowed for detainee abuse outraged the nation and undermined the legitimacy of proceedings. Now, in a dramatic overcompensation, military officials are so afraid of allegations of mistreatment that they fret over whether the seats on the detainees' buses have soft enough cushions. Allegations of torture have also harmed our position in the world as a just and humane society. When we lose our moral authority, we lose our ability to prevent atrocities in the rest of the world, which makes us less secure as a nation.
The Guantanamo detainees can see these deficiencies and exploit them. They abuse the translators and make endless requests for irrelevant paperwork. They follow current events and know precisely what to say to get their message into the media. They also refuse to cooperate with their lawyers and know exactly how far to push the judge. This stands in stark contrast to the parallel habeas corpus proceedings underway in federal court, where some have been very cooperative.
The end result is often sad political theater rather than a legitimate legal process. Many of the arguments and decisions rendered under the military tribunals appear geared toward trying cases in the court of public opinion rather than in a court of law. Lawyers on both sides become frustrated and those frustrations can turn into animosity for opposing counsel. Humanitarians who observe the detainees and the military personnel who guard them treat each other with uneasy suspicion because neither group trusts the political agenda of the other.
The system of justice I witnessed at Guantanamo really doesn't work. It also needlessly divides the American people. While I hate to see these proceedings delayed yet again, the Obama Administration needs to re-think the current faulty process and come up with a system that makes sense. This new system must better balance all four competing imperatives and carefully consider public opinion. Additionally, the polarized advocates on both sides need to drop their most unrealistic demands and reach practical compromise. If not, the American people may have to wait another eight years for justice.