NY TIMES CHARLIE SAVAGE
THE TERROR COURTS
Rough Justice at Guantánamo Bay
By Jess Bravin
Illustrated. 440 pages. Yale University Press. $30.
Even by the lax standards of Washington political rhetoric, the recurring debate over military tribunals stands out as especially unmoored from reality.
Supporters portray them as the tough-minded way to handle terrorism cases and civilian courts as weak. Yet in those civilian courts federal prosecutors have repeatedly demonstrated an almost ruthless effectiveness, winning severe sentences without grounds for successful appeal. Meanwhile the military tribunals experiment started by the Bush administration and now continued, after some reforms, by the Obama administration, has floundered; to date the only two guilty verdicts won at trial were vacated by an appeals court, leaving a handful of plea deals in which defendants gave up their right to appeal in exchange for brief sentences.
Deputy Attorney General Paul J. McNulty leading the prosecution team at an Alexandria, Va., courthousein 2006
Lack of experience, expertise, and established legitimacy has led to erratic and even counterintuitive results,” writes Jess Bravin, a Wall Street Journal reporter. “Even plausible convictions will remain clouded for years” by appeals.
In “The Terror Courts: Rough Justice at Guantánamo Bay,” Mr. Bravin sets out to chronicle what he portrays as “the legal equivalent of a war of choice,” the from-scratch alternative justice system President George W. Bush created by fiat in November 2001 to deal with captured Qaeda suspects. The bulk of his account focuses on the first and most dysfunctional version of that system, which the Supreme Court struck down in June 2006.
Mr. Bravin has long covered the war-on-terror tribunals for The Journal, including a front-page article in 2007 headlined “The Conscience of a Colonel.” It revealed how a military prosecutor, Lt. Col. V. Stuart Couch, had reluctantly become convinced that a Guantánamo Bay detainee, who had probably recruited the Qaeda cell that carried out the Sept. 11 hijackings, could not be tried because the United States had tortured him.
For years defense lawyers had denounced the commissions system while the military prosecutors’ office asserted that all was well. Mr. Bravin’s article showed that behind the scenes some uniformed prosecutors too saw the process as flawed. Congressional Democrats asked Colonel Couch to testify before the House Judiciary Committee. But the day before the hearing the Bush administration ordered him not to appear. Despite expressions of outrage “Democratic lawmakers’ interest proved short-lived, and the issue soon was forgotten,” Mr. Bravin recounts.
Now, six year later, his book plumbs the memories of Colonel Couch and others — and mines subsequent Congressional testimony, inspector general reports and courtroom transcripts — to show how, by seeking to avoid the legitimizing constraints of the regular justice system’s checks and balances, the Bush team ended up undermining the government’s power to impose punishments for war crimes.
As Mr. Bravin writes: “The politicals had imagined that a commission made up of combat or logistics officers, unburdened by legal training, would hurry trials to conclusion rather than ponder every step with lawyerly caution. Instead, defense attorneys had seized on that very structure to gum up proceedings.”
Besides its value in synthesizing many sources into an accessible history, the strengths of Mr. Bravin’s account are the moments when he takes us inside the secretive prosecutors’ office. He shows how ideologically driven Bush appointees sneered at military lawyers because they had attended less elite law schools, while cronyism and incompetence among top officials undermined morale. Some detainees from countries whose governments supported Mr. Bush’s policies were released while equally or less culpable ones from elsewhere faced potential charges. Torture tainted several promising cases they did have. An uncooperative Central Intelligence Agency refused to provide critical information about some detainees and held on to the most important captured terrorists, leaving mostly “smaller fish.” Military prosecutors “despaired over the disconnect between commissions’ presidential conception and the project’s near irrelevance to the actual war on terrorism.”
Writers about current events face a trade-off: over time more information becomes available, but its value recedes. Fully 80 percent of Mr. Bravin’s volume is devoted to the first iteration of tribunals, now seven years gone. Like a movie montage sequence his account rapidly accelerates through the second, established under legislation enacted by a Republican Congress in October 2006; it achieved several convictions before it was shut down by President Obama in January 2009. Mr. Bravin has even less to say about the third, still unfolding, which the president revived following another overhaul by a Democratic Congress.
Mr. Bravin portrays Mr. Obama’s decision to keep tribunals, which confounded expectations created by his campaign oratory, as a simple choice to spend his political capital elsewhere, giving “the terror courts a bipartisan imprimatur that virtually ensures they will be a fixture of American law for years to come.”
This account omits a complexity: As a senator in 2006 Mr. Obama voted for Democrats’ version of the tribunals bill, the model for the latest overhaul. Mr. Bravin may also overstate the option of charging Guantánamo detainees in civilian courts under the “material support for terrorism” statute; prosecutors have concluded that the law probably did not cover conduct before October 2001, when Congress amended it to expressly cover actions by non-Americans abroad.
Still, Mr. Bravin’s book is a welcome addition to the history of national security legal policy dilemmas in the Bush era, a turbulent period whose consequences still ripple. Pretrial hearings are now moving forward for the biggest fish formerly held by the C.I.A.: Khalid Shaikh Mohammed and four other accused accomplices in the Sept. 11 attacks, and Abd al-Rahim al-Nashiri, accused of plotting the 2000 bombing of the U.S.S. Cole.
A new chief prosecutor, Brig. Gen. Mark S. Martins, has asked that watchers give the twice-reformed system a chance. He has promised not to use statements tainted by torture but argues that its more flexible evidentiary rules are necessary in some cases, and notes that it has now been endorsed by presidents and Congresses of both parties. Defense lawyers continue to challenge its legitimacy.
It remains to be seen whether the current iteration has been fixed enough to succeed where previous versions collapsed, but Mr. Bravin appears skeptical, concluding that it is too late “to do commissions right the first time.”
He writes, “The question remains whether they can be done right at all.”