A System in Shambles
In November 2004 the first U.S. military commission hearings in more than 60 years reconvened in Guantánamo Bay, Cuba. Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11 attacks, was in U.S. custody, but he did not sit in the defendant’s chair. High-value detainees like Mr. Mohammed were still being interrogated and tortured by the Central Intelligence Agency in undisclosed locations. Instead, the Bush administration elected to prosecute Salim Ahmed Hamdan, the former driver for Osama bin Laden, alleging that he had committed war crimes.
Having decided that the legal protections of the Geneva Conventions did not apply, the Bush administration anticipated a swift conviction. But things changed quickly. On the first day of hearings, as defense counsel spoke, a uniformed Marine bailiff walked up to the presiding officer and handed him a note. His face went pale, and he yelled, “Court in recess.” The breaking news: U.S. District Judge James Robinson invalidated the entire apparatus of the military commissions for failing to conform to the Geneva Conventions, and he ordered an immediate halt to the proceedings.
This dramatic turn of events, a stunning blow to Bush administration efforts to evade longstanding principles of international law, was the first of many to come. Jess Bravin, the Supreme Court correspondent for The Wall Street Journal, offers the most thorough account of this history in The Terror Courts: Rough Justice at Guantánamo Bay. One of the first reporters to visit Guantánamo Bay when the military detention center opened in January 2002, Mr. Bravin is an expert in the legal ramifications of U.S. counterterrorism policies after Sept. 11.
The Terror Courts, with its unexpected twists and turns and all the personal drama one has come to expect from politicos in Washington, could easily find itself on the “political thriller” shelf at the local library. But this is nonfiction, and the story—shockingly after 11 years—continues to unfold. In fact, publication of The Terror Courts was delayed for a couple of months so Mr. Bravin could include the latest major setback to the already beleaguered commissions, again involving Salim Hamdan.
After Congress passed the Military Commissions Act of 2006, Mr. Hamdan was tried again and found guilty of providing “material support” to terrorism. In October 2012, however, the reliably conservative U.S. Court of Appeals for the District of Columbia threw out the conviction. “Material support” is a federal criminal violation, not an international war crime, the court ruled. In a separate case, and for the same reason, the court later vacated a conviction of “conspiracy” to commit terrorism. Will this prove the fatal blow for the military commissions? Of the meager seven convictions in military commissions since 2007, each has involved at least one of these now-discarded charges.
Brig. Gen. Mark S. Martins, the chief prosecutor, acknowledged on June 16 that these court rulings affect how many detainees will actually face prosecution. General Martins estimates that only 20 detainees, less than 3 percent of those detained at Guantánamo Bay since 2002, will ever face charges for war crimes. The Bush administration, fond of perpetuating the claim that Guantánamo housed “the worst of the worst” terrorists in the world, never mentioned they could prove this in only a tiny fraction of cases. What did it matter anyway? There was no incentive for the Bush administration to press charges against detainees, Mr. Bravin points out. Any trial, no matter how secret, could expose unsavory details about secret prisons and brutal interrogations, and the detainees were already serving de facto life sentences.
In The Terror Courts, Mr. Bravin demonstrates an intimate knowledge of the documentary history of the commissions—news reports, court transcripts and government reports and declassified documents—but he also offers an unprecedented insider account of the political maneuvering and contentious discussions that helped shape evolving policies and strategy. Much of Mr. Bravin’s narrative relies on interviews with people with direct knowledge of conversations that happened behind closed doors and, until now, were not available to the general public. The reader, for example, is privy to deliberations among shocked prosecutors when Judge Robertson halted the first Hamdan trial in November 2004. Some prosecutors favored ignoring the order and moving ahead with the trial. Others warned against defying a federal judge. John Altenburg, appointing authority for the military commissions at the time, did not want to instigate a constitutional crisis, Mr. Bravin writes. “You don’t screw around with a federal judge,” Mr. Altenburg told prosecutors. “End of discussion.”
Few of the key players in The Terror Courts favor principle over political expediency, but Lt. Col. V. Stuart Couch, a military prosecutor, is a notable exception. By placing the personal journey of Colonel Couch at the center of the narrative, The Terror Courts serves a valuable case study of how to be a person of conscience when professional duty conflicts with ethics.
Mr. Bravin tells us that Colonel Couch, having lost a close friend on 9/11, the copilot of United 175 that flew into the South Tower of the World Trade Center, relished the opportunity to prosecute those responsible for the attacks. As the seasoned prosecutor learned more about detainee abuse, however, he feared this would complicate prosecution efforts. Mr. Bravin explains that Colonel Couch expressed his concerns to a trusted Marine judge advocate, who simply responded, “Do the right thing.” Easier said than done.
Colonel Couch was assigned the case of Mohamedou Ould Slahi, an alleged recruiter of the 9/11 hijackers and the highest value detainee held at Guantánamo at the time. After his arrest, Mr. Slahi was rendered to Jordan and tortured, according to documents reviewed by Mr. Bravin. Later, a Bush official personally traveled to Guantánamo and told Mr. Slahi that if he did not cooperate, his mother could be transferred to the military prison and gang raped. This weighed heavily on Colonel Couch. Knowing that the Convention Against Torture prohibited any use of evidence obtained by torture, Colonel Couch questioned whether he could legally prosecute Mr. Slahi.
Mr. Bravin deftly portrays the moral anguish of Colonel Couch, a deeply religious man. The colonel’s brother-in-law, a Protestant theologian, counseled him to pray about it. Later at a Sunday church service in Falls Church, Va., during a routine renewal of baptismal promises, the questions began to take hold of him. “Will you seek and serve Christ in all persons, loving your neighbor as yourself?” All persons included Mr. Slahi, Colonel Couch realized. Mr. Bravin writes: “He was surrounded by people, but suddenly Couch felt very, very small. It was as if he stood alone in a dark, cavernous hall, a bright, single shaft of light illuminating him, unseen persons, or powers, awaiting his answer.” United with those around him, he responded, “I will. With God’s help.”
Colonel Couch decided to drop the case against Mr. Slahi. A 9/11 case. “I’d hate to say it, but being a Christian is gonna trump being an American,” he explained.
In 2010 Mr. Slahi finally had an opportunity to challenge his detention in federal court, where Judge James Robertson ruled that the government did not credibly establish that Mr. Slahi provided material support to terrorism and ordered his immediate release. The judge called the government’s evidence as “so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a criminal prosecution.” Later the D.C. Circuit Court remanded the case for further fact-finding. Mr. Slahi remains detained at Guantánamo to this day, even though the government no longer plans to prosecute him.
The government has elected to prosecute Khalid Shaikh Mohammed and four others for their alleged roles in the Sept. 11 attacks. In November 2009 Attorney General Eric H. Holder Jr. announced that the five 9/11 defendants as a group would face criminal prosecution in the federal court system, the gold standard of credibility. However, after a public outcry about alleged dangers associated with transferring the defendants to U.S. soil, the case ended back in the military commissions system.
Readers of The Terror Courts are likely to conclude it is unwise in the extreme for the United States to prosecute the most important terrorism trial in the nation’s history in a disorganized, discredited and ineffective system like the military commissions. The Terror Courts is an unrelenting, 448-page indictment of the military commissions experiment. Mr. Bravin is persuasive in describing the repeated failures of the commissions, and Stuart Couch is treated as the hero he undoubtedly is. The reader, however, might wonder whether there is more to the story. Have we heard the strongest arguments from defenders of the commissions? Is there really no compelling case in favor of continuing the commissions? For Mr. Bravin, the jury has already returned the verdict on this question.
This article also appeared in print, under the headline “A System in Shambles,” in the November 11, 2013, issue.