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Military commission machinations: Another effort at changing the rules in the middle of the process

When I defended David Hicks in front of a military commission years ago, I was operating under a system that was changing as the case proceeded. It is extremely difficult to defend anyone in a system whose rules are not fully formed and where there is little to no precedent to rely on.
Although the rules governing the commissions are more established now than they were initially, the process is still far from fully formed and the stakes – with the accused facing capital charges – are much higher. Yet when given a choice of where to prosecute the five men accused by the United States of plotting the 9/11 attacks, the Obama administration chose the military commissions. Now, years into a complex effort to defend clients against capital charges in military commission proceedings in Guantanamo, the government has gone to Congress, hat in hand, asking it to change the rules once again. Altering the rules five-plus years into the proceedings is unacceptable and would further undermine the system’s legitimacy.  Indeed, constantly shifting rules was one of the Supreme Court’s concerns when it overturned the original military commissions system in 2006.
{mosads}Guantanamo already is, by the President’s own admission, a national security liability. Changing the commission rules at the behest of the Pentagon only aggravates that continuing problem for the U.S.’s reputation.
It is no secret that the trials have been anything but smooth. Still in the pretrial stage, the proceedings have been mired in a mess of the government’s own making. The government has eavesdropped on attorney-client communications, infiltrated and investigated defense teams and been charged with undue command influence. Yet incredibly, their response is to ask Congress to change the rules in ways that would undermine fundamental constitutional protections. One such proposal would authorize the holding of pre-trial hearings via video conference. This undermines the absolute right of any defendant to be present at his or her own trial – a cornerstone of the American justice system.  The idea that any proceedings in a case where the government seeks the ultimate sanction – the death penalty – could happen without the ability of the accused to participate in person in his or her defense is unprecedented.
A second proposal that would allow the government to withdraw capital charges without re-referring the case sounds like a positive development, particularly for the defendant, but the devil is in the details. The military commissions, like any court, can plead a capital case down to non-capital charges at any stage of the proceedings, but as currently constituted the military commission would have to re-refer the charges – essentially starting from scratch – if the prosecution wanted to change the charges but proceed with trial. The Military Commissions Act requires that the government provide funding for Learned Counsel, which is a defense attorney with capital experience. Giving the prosecution the ability to withdraw capital charges without re-referring the case in essence gives it the power to eliminate the funding requirement for attorneys who have been with these cases for years and have developed relationships with their clients that are critical to providing a zealous and adequate defense. Such manipulations would inevitably lead to further litigation and delay, and any convictions obtained would be at serious risk of being overturned on appeal.
Currently the detention operation in Guantanamo costs approximately $5.5 million per detainee each year.  Tinkering with justice at the military commissions should not be where the Pentagon chooses to cut costs. Although far from perfect in their current iteration, the proposed changes to the military commissions make them less fair and more vulnerable to legal challenge. In what are arguably the most high profile prosecutions in recent history, the U.S. government should be seeking fairness and justice, not efficiency and thrift. Congress should reject these efforts out of hand.

Dratel is an attorney in private practice in New York City and serves as Chair of the National Security Committee of the National Association of Criminal Defense Lawyers


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