JURIST Guest Columnist Brian J. Foley of Florida Coastal School of Law says that the less-than-rigorous procedural rules governing the tribunals and military commissions at Guantanamo Bay endanger us as surely as any terrorists...
It's beyond argument that the rules the tribunals at GTMO use are weak and that, as an epistemological matter, we can't trust their determinations. The "Combatant Status Review Tribunals (CSRT)," which decide whether a prisoner is an "enemy combatant," use a low standard of proof -- a preponderance of the evidence, with a "rebuttable presumption" in favor of the government's evidence. The government can use notoriously unreliable evidence: hearsay, evidence coerced out of prisoners, and "classified" evidence kept secret from the prisoner. Access to lawyers is forbidden, and only one of the military "judges" is required to have a law degree.
The "military commissions" that President Bush announced two months after 9/11 to try enemy combatants suspected of particular crimes are equally unreliable. Although there is a presumption of innocence and the burden of proof is beyond a reasonable doubt and the prisoner can have a lawyer (with restrictions), only one of the "judges" has to be a lawyer, and convictions can be based on hearsay, coerced testimony, and secret evidence.
One purpose of having rigorous rules of evidence, high burdens of proof, and trained counsel to help an accused mount a defense is to improve public safety. Rigorous rules put the government to its proofs when it carries out its crime-fighting and national security duties. Rigorous rules protect us all by helping ensure that the government is truly ferreting out crime and not just putting on a show.
But when winning is easy, there's no incentive to conduct rigorous investigations. Why sift through evidence or pound the pavement to chase down leads, when it's so much easier to pound a prisoner instead? Why track down an important witness when you can just use what another prisoner says he heard that witness say, as hearsay?
Forcing the government to meet a high burden of proof with reliable evidence would promote vigorous anti-terrorism action. We would have to roll up our sleeves and thoroughly investigate suspects. We would have to work with foreign intelligence and police. We would have to hunt down and investigate suspects' family, friends and acquaintances, which could lead to extensive knowledge about terrorists and their shadowy networks.
The rules at GTMO let us shirk these duties.
Weak rules also make it hard to hold the government accountable. We can't measure our progress in this war, because, logically, we can't tell if the CSRT determinations of enemy combatant status are accurate. About 246 of the more than 751 prisoners have been released. How do we know given that there was no requirement to investigate thoroughly these men pose no danger? Dangerous prisoners may have been released as a reward for providing evidence (accurate or not) against other prisoners.
Take the example of Yasir Hamdi, a US-Saudi citizen jailed at GTMO who challenged his imprisonment all the way up to the US Supreme Court last year. After the Court held that Hamdi must be given legal process to challenge his imprisonment as an "enemy combatant," the government released him, deporting him to Saudi Arabia and forcing him to renounce his US citizenship. Did it turn out, after all, that he wasn't dangerous a conclusion that contradicts every government pronouncement about him up to then? Did the government want to avoid the Court-ordered evidentiary hearing, which might have revealed that our politicians were lying about Hamdi's guilt? Or did the government release this man for some other reason, such as a backroom deal with the House of Saud?
For all we know, actual terrorists are delivering innocent people to US authorities and convincing them that these people are "enemy combatants." Under the existing GTMO rules, a real terrorist could easily provide enough information to make such a claim look plausible, if not dead-accurate. The evidence that would lead to a conviction could be kept secret from the suspect.
Some people believe that the processes at GTMO keep us safe because they seem to err on the side of caution, by "casting a wide net." Each radical Muslim swept off the international street is one less possible terrorist, right? Wrong. This "wide net" feeds the fires that motivate terrorism. A narrower, more accurate net would be less likely to feed these fires. For example, if my brother were a terrorist and was captured and convicted, I would mourn his fate, but I probably would not feel it was unjust. But if my brother were not a terrorist and the US captured him, subjected him to a sham trial and locked him away incommunicado at GTMO, and I knew that he was actually innocent, I might declare my own war against the US. The anger associated with rounding up the wrong people does not stop with their families. I recall how, when I was a teenager (prime terrorist recruiting age), Iranian militants stormed the US embassy in Teheran and took Americans hostage. I had no relatives among the hostages, but I wanted to invade Iran myself. I agreed with the widespread sentiment, "Bomb Iran."
"Wide nets" and easy convictions don't make us safer. They actually increase our risk. The CSRTs should require more rigorous process. The military commissions should use the Uniform Code of Military Justice (which applies to POWs). Better, we should try suspected terrorists in federal district courts, which provide more process.
There's no rule of law that requires the US to deny rights at GTMO: it is a policy decision. It was a bad decision. The loose procedures do not protect national security, but political interests and ambitions.
Such procedures are a feel-good measure that we can't afford.
Brian J. Foley is an assistant professor of law at Florida Coastal School of Law. Email him at firstname.lastname@example.org