Constitution Daily

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Constitution Check: Is the war crimes court constitutionally jinxed?

February 7, 2013 by Lyle Denniston


800px-Guantanamo_baseLyle Denniston looks at the troubled history of the Guantanamo Bay trials and their unsettled future.

The statement at issue:

“The military judge presiding at the Sept. 11 trial ordered the government to unplug any outside censors who can reach into his courtroom and silence the war crimes tribunal…At issue was a mysterious episode when the sound to spectators was suddenly replaced by white noise in court after 9/11 mastermind Khalid Sheik Mohammed’s attorney David Nevin said the word ‘secret.’…’This is the last time that will happen,’ the judge said.”

– Carol Rosenberg, reporter for The Miami Herald, in a January 31 story about an order by the presiding judge of the military commission at Guantanamo Bay, Army Lt. Col. James L. Pohl.

We checked the Constitution, and…

In the Constitution’s 226th year, and in the 12th year of the “war on terrorism,” it remains an open constitutional question how far the federal government can go to prosecute alleged war crimes in special military commissions, rather than in the regular civilian courts. But it is equally an open question whether the ongoing trials at Guantanamo Bay can continue after a series of mishaps suggesting that they may be constitutionally jinxed.

So far, only seven cases have been completed before Guantanamo commissions, and five of those convictions may not hold up, because a federal appeals court ruled last October and again in January that those tribunals do not have the authority to prosecute for crimes that did not exist in U.S. law at the time they allegedly were committed. The Supreme Court has yet to rule on any Guantanamo conviction, and so far it has not yet confronted a case testing whether the commissions as they exist today are constitutionally valid. It has hinted that they might be, but it has not said so explicitly.

But, even the most important of the cases the Pentagon wants to pursue before a commission--the case against five individuals accused of plotting and carrying out the 2001 terrorist attacks on New York and Washington--is now temporarily on hold amid uncertainty over a variety of basic constitutional issues.

The recent incident that Miami Herald reporter Rosenberg recounted about a cutoff of the sound at pre-trial hearings, an electronic interruption by a source that is still unknown to the public, has led defense lawyers for the accused men to claim that they cannot trust the sound system not to be monitoring what they say privately to their clients in the courtroom. But, while the presiding judge has assured those attorneys that they have a right to talk with their clients without being overheard, it is not even clear what the legal source of that right might be.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Judge Pohl, for example, ruled last month that it was premature to decide what parts of the Constitution do apply to the Guantanamo commissions, and said he will decide each issue only as it arises on a specific piece of evidence, testimony, or argument.

In the meantime, a fundamental dispute has arisen between Pentagon superiors and the chief military prosecutor in Guantanamo over how to react to the recent federal appeals court rulings striking down two convictions under charges that were applied retroactively to the accused men in those cases. The prosecutor wanted to drop similar charge in the 9/11 case and in other pending cases, but was overruled by the Pentagon official in Washington who has overall responsibility to supervise the commissions.

The Justice Department apparently has been engaged in an internal debate about what to do about those same court decisions and how they might affect the pursuit of other Guantanamo cases. There has been one news report that the attorney general overruled the Justice Department official with authority to decide whether or not to appeal those cases further. That might be straightened out in time for a Supreme Court appeal in coming weeks.

Congress, in the meantime, continues annually to put new restrictions on how the federal government can carry out war crimes prosecutions. The Obama administration, in the face of fierce congressional and outside political opposition, backed down from a plan to try those accused of the 9/11 crimes in a civilian federal court in New York City. That is the case that the military commission is trying to move forward at Guantanamo now.

It is a fact, of course, that the federal government has had major success in prosecuting terrorism cases in the regular civilian courts. There have been more than 400 guilty verdicts in such cases, including many high-profile cases, such as one involving one of those who was accused of being a hijacker scheduled to take part in the 9/11 plot.

So far, the Supreme Court’s rulings in terrorism cases have been focused largely on the question of detaining suspects, not on trying them. The court’s most important ruling so far in this field, the 2008 decision in Boumediene v. Bush, struck down a part of a 2006 military commissions law that sought to take away from those held at Guantanamo the right to challenge in court their continued detention. Scores of challenges in civilian courts in Washington have been pursued by detainees under that ruling, although few have succeeded in winning release from Guantanamo.

The court has not yet sorted out whether the modern version of the military commissions will be affected by one of its most famous wartime rulings--the Civil War era decision in Ex parte Milligan. In that 1866 ruling, the court barred the use of military trials for U.S. citizens, as long as the civilian courts were open and operating. That precedent may not help those at Guantanamo, however, because it involved a citizen; all those at Guantanamo are foreign nationals. But that remains for the court to confirm, or not.

There are legal advocacy organizations that strongly oppose the current system of military commissions, and they have a variety of constitutional arguments ready to make when the Supreme Court finally has a Guantanamo prosecution before it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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