The Profession v. Gitmo

Continuing to beat the drum for a return to September 10th America, the Washington Post reported on Saturday that a military lawyer, fleetingly involved almost three years ago in assessing whether Guantanamo Bay detainees were properly held as enemy combatants, has now decided the process is “fundamentally flawed.”

The critique of that process, known as the Combatant Status Review Tribunal (CSRT), is offered in an affidavit written for the Gitmo defense bar by Lt. Col. Stephen Abraham, an Army reservist and, of course, a lawyer. It is based on scant experience: For all of six months beginning in late 2004, Lt. Col. Abraham worked in the unit that oversees CSRTs. That’s right: He has had nothing to do with CSRTs for well over two years. He has been uninvolved not only in the hundreds that have taken place since early 2005 but also since the CSRTs began to operate under the two major pieces of legislation that now regulate them. Well into their story, moreover, reporters Carol D. Leonnig and Josh White finally get around to telling us that Abraham’s considered opinion is largely derived from the grand total of one — one! — tribunal he sat on.

That oeuvre is enough for the Post’s headline to squeal that an “Ex-Member” of the tribunals has pronounced “Detainee Panels Unfair.” Naturally, it is also more than enough for Matt McLean, whom we’re told at the end is the “detainee lawyer who first contacted Abraham last week,” to declaim that “[n]ow we can prove” all the “tribunals lack any of the most basic evidence they would have needed to make fair determinations.”

FULL-COURT PRESS

The report conveniently comes right as the Bush administration is embroiled in a vigorous internal debate over whether the much-maligned Gitmo should be closed. Administration hawks, believing it no accident that we have avoided a reprise of 9/11, point out that interrogations there have produced an intelligence trove, enabling the government to thwart al Qaeda attacks, map the terror network, and sharpen the analysis of new information that continues to be gathered. On the other hand, Defense Secretary Robert Gates and Secretary of State Condoleezza Rice are said to have privately joined their voices to those of many congressional Democrats and former Secretary of State Colin Powell, who have vigorously called for closure, concerned that the facility — which critics risibly portray as a “legal black hole” — is harming America’s international standing, especially in the Islamic world.

Although one might think that with Muslims ruthlessly slaughtering each other in the Islamic world, we’d be a tad less concerned about their perception of our humaneness than about protecting Americans, the latter camp is making headway. (Do our fabulous allies in Saudi Arabia, Yemen, and Qatar complain about Gitmo before or after they’re done with this week’s beheadings?) President Bush has said he’d like to see Gitmo closed, and last week “senior administration officials” used the Associated Press to float the trial balloon that closure was imminent — a rumor the White House shot down even as it acknowledged working to shutter the facility “as soon as possible.”

After years of railing against a post-9/11 enforcement paradigm that sees international terrorism as primarily a national-security challenge to be attacked militarily, not a legal problem to be addressed in court, legal elites now sense their opportunity. The full-court press is on for a return to the salad days of treating terrorists as ordinary criminals. Not combatants but defendants, like tax cheats or drug dealers: Fit for trial in the civilian courts and liberally afforded the presumption of innocence, Miranda warnings, publicly-subsidized legal representation, cross-examination of witnesses (like our combat troops), and broad discovery of sensitive intelligence which will apprise the enemy not only of what we know but how we know it.

The Abraham affidavit comes only two weeks after a military tribunal held that a combatant who murdered one American soldier and maimed another could not be subjected to a military commission trial. The tribunal’s bizarre rationale (reviewed here), was that military commissions may only try those found to be “alien unlawful enemy combatants,” while CSRT procedures merely determine whether detainees are “enemy combatants” — the judges thus ignoring that only aliens are held at Gitmo and that, under the military’s definition of enemy combatant, a detainee cannot be deemed one unless he has acted unlawfully (i.e., in violation of the laws of war.)

The latest “bombshell,” furthermore, follows a federal-appeals-court ruling about a week ago, which held that a terrorist sent by al Qaeda to conduct operations inside the U.S. could not be considered an “enemy combatant,” and must either be referred to the civilian courts for trial or released. A majority of the divided three-judge panel reasoned (as explained here) that only a country like Nazi Germany, not a terror network like al Qaeda, can have combatants, and that America is not a “battlefield” of the type where combatants are captured. The judges evidently missed September 11th, when al Qaeda — unlike the Nazis — managed a domestic attack that killed nearly 3000 Americans and left behind a smoldering battlefield where the twin towers once stood.

LAWYERS’ OFFENSIVE

Abraham’s minimal involvement in the CSRT process is not the only thing the Post story tip-toes around. The Abraham affidavit does not appear to have been filed in connection with a specific case he actually knows something about. Instead, it was gratuitously contributed to arm the flotilla of Gitmo volunteer defense attorneys with ammunition. Besides dropping that tidbit about “detainee lawyer” McLean asking for Abraham’s help and then using it to make a sweeping attack on the whole process, the Post also notes that Abraham’s “affidavit was widely passed around … among lawyers for about 375 foreign detainees[,]” who plan to “present it to a federal appeals court as evidence that the military review process is constitutionally flawed.”

Beyond his reservist status and limited CSRT stint, the Post tells us nothing about Abraham’s legal practice and experience. To judge from the assertions in the affidavit, however, what may be “fundamentally flawed” is Abraham’s understanding of the nature and purpose of CSRTs, to say nothing of his grasp of basic criminal procedure.

Preliminarily, though, it is important to observe the background against which all this unfolds. The organized bar, whose leftward bent is not exactly a secret, never thinks there is enough due process — especially when assaying the civilian-justice system, which it now portrays as a panacea only because doing so helps deride Gitmo. We saw this same phenomenon in the NSA warrantless-surveillance controversy: The organized bar loathed the FISA statute right up til the moment it learned George W. Bush had disregarded it, at which point FISA transmogrified into the noble guardian of all that is good.

The bar thus intensely opposes all things Gitmo. Particularly reviled are CSRTs, the vehicles by which the military effectuates venerable laws of war which — contrary to peacetime legal procedures — permit enemy combatants to be detained indefinitely without trial.

A CSRT is a military process, traditionally controlled by the executive branch. Lawyers, who wear distrust of executive power as a badge of honor, strongly prefer the judicial process — which, of course is controlled by judges, the organized bar’s most esteemed members. The haughty conceit that no fact-finding process can be legitimate unless presided over by a civilian court with all the due process protections citizens are afforded under the Constitution is what drives so many attorneys to offer their services, free of charge, to the wartime detainees — many of whom have acknowledged being terrorists at war with America. It’s why lawyers have crusaded for six years to transform CSRTs into civilian criminal trials.

Conventional wisdom in the profession, especially among both military and civilian lawyers who regularly represent people accused of wrongdoing, holds that muscular executive power — an unavoidable feature of wartime if wars are to be won — is more perilous to our nation than any security threat al Qaeda detainees may pose. In evaluating Lt. Col. Abraham’s claims, it’s more noteworthy that he is a lawyer than that he once briefly participated in the CSRT process.

Of course, Abraham may be right that the CSRTs are flawed. That, however, cannot be judged on his say-so, particularly given his lack of direct knowledge about the vast majority of tribunals. Nor is the propriety of CSRTs a function of where they occur. Whether a combatant were detained at Gitmo, in some other country, inside the U.S. or, for that matter, on the moon, the validity of a CSRT would have to be gauged by an objective review of the actual record in the specific case, not a blunderbuss attack on the whole process by a group with an ax to grind, relying on a witness who usually wasn’t there.

That is why Congress provided for CSRTs to be reviewed — after exhaustion of the military-justice system’s appellate process — by one of the nation’s top civilian courts: the U.S. Court of Appeals for the D.C. Circuit. It is also why, in a related case just two months ago, the Supreme Court declined to intervene further in the Gitmo cases until the process prescribed by Congress has run its course. So doing, the justices cited “traditional rules governing our decision of constitutional questions … and our practice of requiring the exhaustion of available remedies[.]”

For all the malarkey about “legal black holes,” the ongoing war marks the first in American history — a history that features millions of wartime prisoners detained indefinitely without trial — in which enemy combatants have been given systematic access to the civilian federal courts to challenge their detention. If the CSRTs are flawed, the process Congress has put in place will make that painfully obvious.

THE PROCESS THAT IS DUE IN WARTIME

Until that happens, there is much reason to be skeptical about Abraham’s judgment, and about the Post’s transparent and unconvincing effort to bolster it. On the latter score, the Post takes pains to suggest that CSRTs must be skewed in the government’s favor, just as Abraham says, because a lopsided 93 percent of the 558 detainees for whom they’ve been held have been found to be enemy combatants. By that logic, we’d better close down the U.S. Justice Department, too. After all, it enjoyed a 90 percent conviction rate in 2004 (the last year for which comprehensive figures are available from the Bureau of Justice Statistics). And that’s not for a paltry 558 cases; it’s 90 percent of 83,391 defendants. The Post’s approach would extend the same skepticism to the legal systems of many American cities and towns, like San Diego, where the District Attorney boasts a whopping 94.2 percent conviction rate over 18,763 felony cases in 2005.

In truth, the statistical game is a very poor fairness metric. The fact is that by 2004, over 10,000 people had been detained by the military as suspected combatants, yet there were never more than about 800 — i.e., a mere eight percent of that total — held at Gitmo. That figure has been reduced to less than half (now about 380) by repatriating hundreds of detainees, with the result that many returned to the jihad and were killed or captured. (See this report from National Review’s Deroy Murdock.) Meanwhile, what the Post’s statistics actually underscore is that the CSRTs are no kangaroo court: 38 detainees have been found not to be combatants when the tribunals scrutinized their cases.

More to the point, Abraham does not appear to appreciate the purpose of a CSRT. His main complaints are that the tribunals feature (a) too much hearsay, and (b) a lack of access to exculpatory evidence. But that is to be expected, and would be standard operating procedure even in civilian courts.

A CSRT is not a trial; it is a wartime detention hearing. Its goal is to determine that there is a reasonable basis to believe the detainee is an alien unlawful enemy combatant who would resume fighting the U.S. if released. The purpose is not to disprove all possibility that the detainee is not a combatant, nor is it to determine whether he is guilty beyond a reasonable doubt of war crimes — a question that would be weighed in a military commission trial, not a CSRT.

But, sure, let’s compare the federal criminal justice system, where civilian defendants are fully vested with constitutional rights. At the arrest stage, defendants are detained on the basis of a complaint — a hearsay account of second- and third-hand information provided to the court by an investigating agent. If the government seeks to deny the defendant bail pending trial, the court then holds a detention hearing at which the rules of evidence do not apply, meaning hearsay is liberally permitted, witnesses need not be called (i.e., the prosecutor may proceed by proffer), and there is no requirement that the government disclose exculpatory evidence.

Is that due process? Yes. The organized bar doesn’t like it, but the courts have upheld it. The rationale is straightforward: The issue at a detention hearing is whether the defendant is dangerous and whether he is a flight-risk. The issue is not whether he is guilty of a criminal offense. Due-process protections against hearsay and government non-disclosure of exculpatory evidence are trial rights; they are collateral to detention issues.

The same is true of federal grand-jury proceedings. Before a defendant in the United States may be subjected to a felony trial, he must be indicted by a grand jury. But even though criminal defendants in the U.S., unlike alien combatants at Gitmo, are fully vested with constitutional rights, the government is still permitted to present its entire case to the grand jury by hearsay. Further, it is not required to inform the grand jury about any exculpatory evidence. Again, those protections are for trial; all the grand jury is deciding is whether there’s a good reason to have a trial, not whether the defendant is guilty.

So Abraham’s complaints would be unavailing even if CSRTs were full-fledged judicial proceedings. But, again, they are not. CSRTs are part of the military decision — a decision that has always and necessarily been the exclusive province of the branch of government responsible for conducting warfare — that a war prisoner should be detained so that he can be interrogated for intelligence purposes and prevented from rejoining the enemy’s forces. It is not a legal black hole. It is a law and custom from time immemorial, and the theory behind it is humanitarian: Gleaning intelligence and reducing the enemy’s resources will end hostilities more quickly and with less human suffering. Detaining the combatant is not convicting him — when the war ends, he must be released, and he may be released before the war ends, as most Gitmo detainees have been.

Lawyers, instinctively but misguidedly, see the CSRT as a mini-trial, and they bristle at the fact that the “defendant” is denied both counsel and access to sensitive evidence. It is not, however, a judicial proceeding; it’s an elemental phase of warfare. In war, the higher national interest is in defeating the enemy and protecting the country, not vindicating the civil rights of individuals — particularly alien individuals held overseas, whose claim on American constitutional rights is, to say the least, dubious.

In deference to the aliens, though, the idea is to have the CSRT as early as possible, to ensure that the military is not holding someone who is clearly a non-combatant. Yet if, as the organized bar would have it, the detainee were given counsel at that early stage, any competent lawyer would advise him not to speak to interrogators. That would promptly terminate intelligence gathering — the exercise that saves American lives, including those of our troops, and constitutes much of the reason for detaining the combatant in the first place.

So what are the choices? We can delay the CSRTs for however long it takes to complete intelligence gathering, which could be years. That, though, would unduly delay CSRTs that might result in the immediate release of true noncombatants. Alternatively, we can hold the CSRT shortly after the detention but (a) deny counsel so that interrogation can continue, and (b) deny access to sensitive evidence so the detainee cannot reveal it to his confederates in furtherance of their war against Americans. Palpably, the latter is the only workable option. Otherwise, one could say there is no point in taking any captives — in which case we might as well just stop fighting the war and go back to waiting for another strike by al Qaeda, which will continue to be at war with us no matter how we handle detainees.

It is deeply unfortunate that CSRTs have been bogged down in litigation. The best way to resolve their worthiness would be to get them, finally, to the D.C. Circuit, as Congress has prescribed. Even there, and ultimately in the Supreme Court, they are likely to face a stiff test. The bar will continue battling to force the square peg of peacetime legal assumptions through the round hole of wartime national-security standards, and their audience, the judges, are lawyers — expert in the practice of law, not the waging of war.

But in those courts there is at least the prospect of a fair fight. That is more than can be said for the legal profession’s relentless, media-supported campaign against the imperatives of military success.

— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.