Last month, just minutes into a pretrial hearing for the five men accused of plotting the Sept. 11, 2001, attacks, David Nevin, the lead defense attorney, asked the judge to stop the proceedings. His concern: A third party, possibly the CIA, might be listening to privileged conversations between the defense attorneys and their clients. “This is not something we made up,” Nevin told the judge. “This is a genuine concern that we have. And as officers of the court and as lawyers, we have to get to the bottom of it before we can go forward.”
Had the allegation been made in a federal court, it would have seemed, at best, a little paranoid. But in the military commissions at Guantanamo Bay, there is an oasis of space for such accusations. The special terrorist courts, which were set up by the George W. Bush administration to deal with foreign prisoners accused of terrorism, have been fighting allegations of second-tier justice and double standards since their inception. The Supreme Court weighed in and found the Bush-era commissions unconstitutional. Congress has reformed the commissions twice — in 2006 and again in 2009 — making them into a kind of hybrid of military courts and federal ones.
Even so, there is still a general sense that something is just not right with the courts at Guantanamo Bay. For most Americans, the specific problems are difficult to recall — something about rough interrogations, hearsay evidence and indefinite detention. The details have remained sketchy. Until now, that is, thanks to the Wall Street Journal’s Supreme Court reporter, Jess Bravin, whose new book anchors the criticisms in detailed facts. “The Terror Courts” is a comprehensive accounting of the creation of the commissions in the months after the Sept. 11 attacks. It is a book that pulls no punches. It names names. And in so doing, it is a gutsy, finely wrought narrative that explains how a small group of Bush-era political appointees managed to develop a parallel justice system designed to ensure a specific outcome.
The ingredients that go into such a system are fairly straightforward, Bravin explains. Strip the defendants of rights. Have an administrator who is both judge and jury. Be selective about the military-commission history on which the system is based — the Bush administration focused on one outlier case — and then make sure to exclude the military’s lawyers so that their fealty to the Uniformed Code of Military Justice doesn’t get the in the way of the mission.
The fix, Bravin reports, was in from the outset. The draft of the military commissions order in the month after Sept. 11 was just 1,800 words, and it “made no reference to basic due process,” he writes. “The only standard was that evidence hold ‘probative value to a reasonable person.’...There was no requirement that any member of the commission be a lawyer. Instead lay officers from infantry, artillery, or other units would conduct a trial that could order a defendant executed.”
Consider the Pentagon’s general counsel at the time, William J. Haynes II, who oversaw the development of the post-9/11 military commissions. He was a contracts attorney with no experience in the laws of war, Bravin writes, but he told a subordinate drawing up the rules of the commissions “to avoid using the word rights — except to state, as the document did, that the order conferred none. Instead of rights, those selected for military commissions would have ‘procedures accorded to the accused.’ ”
Bravin also chronicles the effort to transfer the terrorism portfolio from the Justice Department — which enjoyed a terrorism conviction rate of nearly 100 percent — to one of Attorney General John Ashcroft’s Cabinet rivals, Donald Rumsfeld, and how that, too, was meant to put a thumb on the scales of justice. “In one early draft, the secretary of defense would select all the participants — the members of the commission, the prosecutor, the defense attorney — and then would decide any appeals,” Bravin writes.
Days after officials produced that draft, Vice President Dick Cheney brought it to the president and discussed it with him over lunch. “Normally,” Bravin writes, “documents for the president’s approval are filed with the White House staff secretary, who circulates the draft among key officials for last-minute comments or concerns.” Instead, Bush signed the commissions order hours after his discussion with Cheney, without the staffing. The White House issued a small news release. “As news reports picked up the press release, there was shock — most of all among administration officials who discovered they had been cut out of the process,” Bravin writes.
While the book provides a roster of villains — including what could only be called a gleeful evisceration of former chief prosecutor Robert Swann — there are heroes, too: men in uniform who were deeply uncomfortable about the direction the military commissions were taking. One of those people was Marine Lt. Col. Stuart Couch, who appears to have been a key source for the book.
He worked on the 1998 Aviano case, in which a Marine pilot, about to end his tour, flew below regulation altitude and clipped a ski gondola in the Italian Alps, killing all 20 Europeans on board. Couch was the U.S. government liaison to the victims’ families. The case ended in acquittal, and Couch was devastated. He left active duty disillusioned. He returned after the Sept. 11 attacks.
Couch ended up as the chief prosecutor’s point man for the most significant cases at Guantanamo. He was asked to build cases on detainees. Yet as he dug into one case after another, he hit roadblocks that made prosecution impossible. Either the CIA would not provide intelligence for the case, or the prisoners were abused, or the evidence was thin.
The book ends with the May 2012 arraignment of Khalid Sheik Mohammed, the alleged Sept. 11 mastermind, and his four co-defendants. I was at that arraignment, and as Bravin reports, it took 13 hours. Defendants misbehaved. Defense attorneys objected. And the prosecution was forced to read almost the entirety of the 87 pages of charges in half-hour rotations.
The problem is that by ending there, Bravin leaves readers with plenty of dark stories about the commissions’ past, but without a strong sense of how they may have been reformed since that time. He gives the impression that the commissions may never transcend their history. His pessimism — though not unwarranted — seems, at best, premature.
While observers (and I am one of them) could be forgiven for feeling a tug of impatience, the process is lurching forward. During last month’s battle over eavesdropping, Brig. Gen. Mark S. Martins, the chief prosecutor, spent a week investigating whether something untoward was going on. He announced unequivocally that attorney-client privilege was as safe at Guantanamo as it would be anywhere else. Defense attorneys are continuing to investigate, but no one has suggested that Martins was covering anything up. That, in itself, suggests a step in the right direction.
Late last year, about the time Bravin was going to press, a former top Pentagon lawyer, Jeh Johnson, gave a speech at the Oxford Union in Britain. He mused about what would happen when the conflict with al-Qaeda finally ended. “At that point we will . . . need to face the question of what to do with any members of al-Qaeda who still remain in U.S. military detention without a criminal conviction and sentence,” Johnson said. “For this particular conflict, all I can say today is that we should look to conventional legal principles to supply the answer.”
I would like to have seen Bravin deal with that question and explain what will happen next, and how rough justice at Guantanamo Bay could play out after the hostilities against al-Qaeda are over.
THE TERROR COURTS
Rough Justice at Guantanamo Bay
By Jess Bravin
Yale Univ. 440 pp. $30