Guantanamo Bay: undermining the global war on terror

Joint Force Quarterly, Oct, 2005 by Gerard P. Fogarty

The administration's system of justice for detainees charged with war crimes was crafted by a group of lawyers who in September 2001 held posts at the White House, the Justice Department, and other agencies. The work commenced just over a week after 9/11 under the direction of the Vice President and was coordinated by the White House counsel, Alberto Gonzales. The idea of using Military Commissions had been investigated a decade earlier for trying suspects in the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The interagency group investigated four options: Military Commissions, criminal trials, military courts-martial, and tribunals with both civilian and military members like the Nuremburg trials.

By October 2001, the White House lawyers had grown impatient with the "dithering" of the interagency group and took over the effort. At this stage all options were reportedly abandoned, and planning for Military Commissions moved forward more quickly, but whole agencies, including DOD, were completely left out. (19) The legal basis for the administration's approach was laid out on November 6 in a confidential memorandum from the Attorney General's office to White House counsel Gonzales. Attorney General John Ashcroft had refused congressional requests for a copy, but its contents were leaked by The New York Times. The memorandum said that the President, as Commander in Chief, has "inherent authority" to establish Military Commissions without congressional authorization and could apply international law selectively. In particular, the memorandum outlined the legal precedent under which due process rights do not apply to Military Commissions. (20)

The administration moved quickly after receiving the Attorney General's advice, releasing the Presidential Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism on November 13, 2001. Rear Admiral Donald J. Guter, the Navy Judge Advocate General at the time, commented that many Pentagon experts on military justice were kept in the dark until the day before the order was issued. Moreover, their hastily prepared amendments did not appear with the final document. Senior staff from the National Security Council and the State Department were also excluded from the final discussions, with the National Security Adviser and the Secretary of State finding out the details after the order was issued. (21)

In World War II, when the United States last used Military Commissions, the tribunals were fashioned generally on the prevailing standard of military justice. Following 9/11, however, the administration believed a paradigm shift was needed to deal with terrorism. The Presidential Military Order outlined the revised approach, which enabled a lower standard of proof, expanded secrecy provisions, permitted a more liberal application of the death penalty, and denied judicial review of convictions. It announced that the exact rules were to be established later by Secretary Rumsfeld. Criticism, some of which came from inside the administration, was immediate. It was reported that the respective judge advocates general within the Pentagon supported the use of commissions but argued strongly that the system would not be fair without amendment. When Secretary Rumsfeld finally published the rules for the commissions, it became obvious that he had settled on a compromise. Although he granted defendants a presumption of innocence and set "beyond a reasonable doubt" as the standard for proving guilt, Rumsfeld did not allow judicial review of convictions by civilian courts.