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Among those who are most engaged with them, there is a general consensus that the military commissions created by the Bush Administration were a huge embarrassment. The question is whether they can now be salvaged and turned into something respectable. A leading practitioner, Major David Frakt, says “no.”
Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail…
Among the 200 plus detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in federal court. Of course, if the only evidence of criminality by an individual was obtained through torture and coercion, then that person is unlikely to be convicted in a federal court. But if that is all the evidence we have, then we shouldn’t be prosecuting anyway, whether in a civilian court or a military commission. If the abandonment of the rule of law that resulted in the egregious abuse of detainees may mean that a few “bad men” cannot be prosecuted, perhaps that will serve as a deterrent to such deviations from our core values in the future. The bottom line is that there are simply no advantages to military commissions and no compelling reasons to keep them. Military commissions are not faster, more efficient or less costly than the alternative. Military lawyers have no special expertise in prosecuting or defending complex international terrorist conspiracies. Try the terrorists where they should have been tried all along, in U.S. District Courts.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Acres of hemp grown by “patriotic‚” U.S. farmers in 1942 at the behest of the U.S. government:
A study suggested that the health effects of exposure to nuclear radiation at Chernobyl were no worse than ill health resulting from smoking and normal urban air pollution.
Greenpeace apologized after activists accidentally defaced the site of Peru’s 2,000-year-old Nazca Lines when they unfurled cloth letters reading “time for change” near the ancient sand drawings. “We fully understand,” the group wrote in a statement, “that this looks bad.”
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“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”