Military commissions

Mark Denbeaux is a law professor and the director of the Center for Policy and Research at Seton Hall Law School in Newark, New Jersey, which is internationally recognized for its work on the Guantanamo Bay Detention Camp. Denbeaux has also represented several Guantanamo detainees and is the co-editor of "The Guantanamo Lawyers" (2009).

DW: The military trial of five defendants marks the culmination of a complete reversal by the Obama administration which when it came into office wanted to close Guantanamo and end military trials. Who is to blame for this the Obama administration or Congress who blocked a transition from military to civilian trials?

Mark Denbeaux: I blame Congress by far. But another source nobody blames is New York City. When Obama announced that they were going to prosecute them in New York City, the New Yorkers who I think are the bravest Americans I know and are fierce and tough and were enraged by the towers going down, suddenly got scared to death that the trial would be here and feared that it would somehow lead to more attacks. I have never seen New York City get up and be publicly scared. And if they hadn’t reacted the way they had they, KSM (Khalid Sheikh Mohamed - the ed.) and the others, would have been prosecuted in New York City. So here is the city where the vast majority of the murders took place too afraid to be the place where the prosecution and trial of those murders should occur.

I just point that out because it tells much about the United States if you think that the bravest city on earth, where the crime happened and people should be the most eager to prosecute, is afraid to do it. I think the rest of the country’s reaction to prosecuting these people was obviously even more timid and frightened. So once New York failed the standard you would expect of it, there was almost no political support for bringing it anywhere else.
　
With Congress blocking civilian trials did the Obama administration have any other alternative aside from military trials?

Congress probably gave him no alternative. But there was one option out there that he recognized was available and studiously refused to take which is the idea of preventive detention. It’s also overlooked that the United States has not either by the executive or by Congress adopted a system whereby people could be preventively detained where they didn’t commit crimes and they couldn’t be shown to be incarcerated under any military standard. I view the American civil liberties as most protected by the absence of a preventive detention standard which is probably the most hostile thing to the American civil liberties you can imagine.

I also think - and this is an odd point - if you look at the prosecutions for what we call material support for terrorism in the United States one count can get you anywhere from 20 to 35 years to live in jail. If you look at the sentences in the military commissions, the kid Omar Khadr, who confessed to actually being in a fight that killed an American soldier, basically got eight years, two of which he would have to serve and he would be relocated to his home country Canada to serve it in.

Then you had this other person, Majid Khan. He gets basically 19 years and in the public record that he confessed to he admits first of all that he was sent by KSM to the United States in order to start thinking about soft underbombings, such as blowing up gas stations with all the gas underneath it. So you have somebody who came to the United States prepared to blow up civilian targets. When he was in Pakistan he was at two different weddings both of which Prime Minister Musharraf was going to be at. He actually put on the suicide vest, made the video to say good-bye, went to the weddings planning to be a suicide bomber and kill a head of state. Musharraf didn’t show up so he didn’t do it. And this guy pleads guilty in the military commission and the maximum he gets is 25 years, though with cooperation he’ll get no more than 19 years. That person being tried in the United States would be spending the rest of his life in jail no questions asked. Nineteen years is a long time, but by US standards it is not nearly as long as you might expect.

One of the ironies is, the military commissions may not be giving the same procedures you would expect in terms of acquittals. But they certainly are more gentle in terms of sentencing than I think American courts would be. I am not convinced American juries are yet ready to function in the way they were trained to and you would expect them to for these people.

So it’s a complicated situation and I say this as someone who does represent some people (Guantanamo detainees - the ed.). And it may well turn out to be that the individuals in Guantanamo are going to be better off. Now I don’t think it’s true for KSM or this group of five - I have absolutely no doubt that the United States wants to do terrible things to them - and whatever we say about anyone else, I think it’s quite likely that they have expectations for executing them. Whether the military commission will do that or not I don’t know. I think they would have been convicted and given capital punishment if they had been tried under Article 3 courts (US federal courts able to render final verdicts on life and death issues - the ed.).

The Obama administration has said it has amended and improved the way military trials are conducted to make them transparent and fair and more like regular US trials. Do you agree with that?

If the statement is that they have improved them than the answer is yes. If the question is whether they have improved them so they are like those other trials than the answer is no. My view on the commissions is there are many ways about them in a complicated world where detainees may be better off.

There’s no way anybody could compare them to the civilian courts although individual people might be better off if they were not in civilian courts. And I think they are trying to be transparent, but it’s a military operation at a highly secure military base and there’s no access to the press. In Iraq the press was everywhere, in Afghanistan you could talk to people. In Guantanamo no one really can except through public relations officers.

Do you think these trials will from now on be a permanent fixture in the way the US justice system deals with what it considers terrorists or what will be the legacy of these trials in your opinion?

That’s really the scariest question of all. The one rule of life that is immutable is the one about unintended consequences. I don’t think anybody, no matter how they design it, can anticipate what the effects of this will be five, 10, 50 or 75 years from now. Whether we even believe in terrorists may change. Whether instead of treating them like criminals we have this whole separate proposition, that could change. Or we could find out this was very attractive for the executive to assert more power and they may do them more and more.

I actually believe the Obama administration is hell bent on making sure that other than these people down in Guantanamo that are there now, that we don’t have any more military commissions. But I also think they are hell bent on making military commissions at least appear legitimate and they are trying to make them as legitimate as they can. I am afraid that if the military commissions proceed other presidents at other times will be much more likely to impose them.

Interview: Michael Knigge
Editor: Rob Mudge