As the hunger strike at Guantanamo Bay enters its fourth month and pressure to close the prison mounts, it’s easy to forget that Guantanamo is not only a detention facility but also the site of a unique legal experiment that has no direct precedent in U.S. history. At times, it can be difficult to keep track of the tangled mess of authorities claimed, cases appealed and lives destroyed with Guantanamo at its center. Those looking for clarity on these issues have a new, important resource in author Jess Bravin’s book The Terror Courts: Rough Justice at Guantanamo Bay, which tells the story of the evolution of Guantanamo’s legal universe in captivating detail, and provides the reader with a clear picture of just how we arrived at this bizarre moment in our history.
Bravin, who is also the Supreme Court correspondent for the Wall Street Journal, populates his narrative with memorable characters, like Charlie Swift, the defense attorney in Navy whites who pulls a surprise Columbo moment before an early commission. Or Tom Umberg, who can’t believe that some of his fellow prosecutors want to push forward with the case against a detainee named Salim Hamdan despite a federal judge ruling it would be unlawful. “Guys, this is huge,” Umberg says in disbelief. “This is Marbury v. Madison.” Stu Couch, a prosecutor who refused to bring charges using evidence he thought was obtained through torture, plays a prominent role in the book as well.
Modern military commissions began as the result of an executive order signed by George W. Bush in November 2001. They were later approved by Congress in 2006, and again in 2009. Among other things, Bravin’s book examines the potential lasting implications of such commissions being formally approved by statute – rather than as the ad hoc, temporary authority they had always held in past wars. As they currently operate, they’re a mix of the civilian court and military court martial systems, a hybrid with very little case law and precedent to offer as guides.
Especially fascinating is Bravin’s description of the overlapping theories the government has used to justify detention. “From the perspective of the U.S. government, both in the Bush and Obama administrations, there are two separate and virtually unrelated legal rationales for holding people at Guantanamo,” the author says in a new 30-minute interview. First, “the government has asserted that under the laws of war it can detain people who are fighting against the United States for preventative reasons” – that is, to keep them from committing acts in the future. Bravin refers to this as “prospective detention,” and says “that premise has explained the imprisonment of everyone who has ever been held at Guantanamo Bay.”
The other rationale he calls “retrospective detention,” and applies to a much smaller number of people who have been held “to prosecute them for violations of the law of war – for war crimes.” Under this system, the military commission system, there have been a total of seven convictions – five of which were from plea bargains and two of which have been vacated on appeal. There are currently six individuals in pre-trial hearings, including self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed.
“These two separate legal theories have led to the anomalous assertion by the government that someone could be charged and acquitted in a military trial by a military commission but held for the rest of his life anyway at Guantanamo Bay because these two legal systems are unrelated, at least in the government’s view,” says Bravin. He adds that “as practical matter people who were convicted under the military commissions system and completed their sentences have been released” – but “the government says it could hold them even if they were acquitted.”
The recent attack on the Boston marathon – and the scattered, panicked calls from some quarters to hold accused bomber (and U.S. citizen) Dzhokhar Tsarnaev as an enemy combatant – raise another interesting question about military commissions. Though there were no serious calls to try Dzhokar before a military commission because citizens are exempt, things could have been different if his brother, Tamerlan Tsarnaev, had survived. Since Tamerlan was a U.S. resident, but not a citizen, Bravin says he could have “potentially [been] subject to military commission” – even if it’s unlikely that he would actually have met the criteria to be labeled an enemy belligerent. For that status to apply, someone has to “be a participant in a military force” engaged in an armed conflict, Bravin says. “It’s not simply building a bomb. That’s not enough.”
Thus, you have a situation where two brothers theoretically could be prosecuted for the same crime under different legal authorities based on their citizenship status. “One of the issues on appeal . . . is whether or not this distinction based on citizenship is constitutional,” Bravin says. “Because in general courts frown on arbitrary distinctions between defendants who are otherwise similarly situated. So if you have two brothers who are accused of the same crime, and accused of the same acts, and the only difference between them is one had his naturalization delayed and the other one did not, that raises a question of, ‘well, why? What’s the basis for making that distinction?'”
Bravin adds that there are many issues on appeal, and – back at Guantanamo – the 9/11 case and the U.S.S. Cole bombing case are still in what will likely be lengthy pre-trial phases. The result is that the lasting effects of institutionalizing military commissions remains unclear, though Bravin suspects that the Pentagon, like all institutions, will be reluctant to give up a power it has claimed. But this power doesn’t come cheap. As he sees it, there are “not just financial costs but costs involving the legitimacy of the outcome, the problems it causes with allies that are skeptical of this form of proceeding, the strain it places on both the Justice department and the Defense department to engage in a novel proceeding.” The question, Bravin says, is: “Are those costs worth it?”