Ten years ago today, President George W. Bush signed into law the Military Commissions Act of 2006 (MCA). It was enacted to authorize trials by military commission for the September 11 attacks, and other alleged offenses, in response to a Supreme Court ruling that had held the Bush administration’s prior use of the commissions unconstitutional. In Hamdan v. Rumsfeld, the Court held that the president lacked the authority to simply order trial by military commission, so the MCA of 2006 provided congressional authorization for the commissions. In Spring 2009, President Obama vowed to reform the commissions, and Congress amended the MCA in October 2009. After that, we were supposed to get on with it, finally using the commissions to achieve justice.
Ten years on, what do we have to show for it?
Of the 780 men who have been detained at Guantánamo since the 9/11 attacks, only eight have been convicted by a military commission. More men have died in Guantánamo (9) than have been convicted. Of those eight convictions, six were guilty pleas, 3 have since been vacated, and 2 are on appeal and may ultimately be vacated. Two other men who pled guilty and agreed to cooperate with the government await sentencing, if their convictions are not also vacated by appeals court rulings in other cases. Indeed, the commissions have shown the potential to unravel at any time under the weight of federal court review if not due to the government’s own missteps. After 10 years, the military commissions are at best a failed experiment in secondary justice, and at worst a comedy of errors.
In addition to the occasionally funny, albeit inexplicable, missteps such as the military commissions flight that departed Andrews Air Force Base last week without the commissions IT staff or media observers in order to fly around Hurricane Matthew, the parade of horribles is usually much more serious, and consequential. For example, legal files and communications “disappear[ing] into the ether,” attempts to deny defendants the right to appear at their own trials, and evidence of eavesdropping on attorney-client privileged communications. As Obama’s presidency is winding down, we need to ask: what, at this point, is the purpose of the military commissions?
Are they about covering up torture? The military commissions are designed to give fewer rights to the defendants than they would receive in a federal court. Among those is the suppression of any evidence obtained through torture—which as a practical matter remains admissible in the military commissions.
Are they about “war on terror” posturing? Fearmongering by certain lawmakers and the resulting congressional interference, including a ban on transferring any detainees to U.S. soil for trial, makes it exceedingly more difficult to try men detained at Guantánamo in federal courts—which would cost less and vastly reduce the chance that fairly obtained convictions would be vacated because of fundamental constitutional violations.
Is it to achieve justice? The commissions have been grinding on for 10 years. Convictions have been vacated. The trials of the September 11 defendants continue 15 years after the fact. And the credibility of this second tier system of justice is in serious doubt. No one expects the 9/11 case to go to trial until at least 2020 – although most observers have given up trying to make predictions.
The fact is, we are no closer today to achieving justice—for anyone: not for families of the 9/11 victims, not for men who were tortured and detained without trial for a decade and a half—than we were 10 years ago. Instead, we’ve thrown good money after bad—to the tune of more than $40 million per year to try less about a dozen men before the commissions—and the military commissions are a huge embarrassment for the U.S.
It is long past time to recognize that the military commission system is a failed experiment and to bring it to an end before we follow this lost cause any further—and before President Obama leaves Guantánamo and the military commissions to his successor.