First the Sentence, Then the Verdict? Counting the Real Cost of Detention and Trial by Military Commission

[1] The wake of the terrorist attacks on September 11, 2001 has been marked by approaches to law and justice on the part of the United States government which have the potential for profound adverse effect. Domestic and international legal orders; conceptions of human and civil rights; and the balance of relationships among states, citizens and international organizations within the rule of law for decades to come may all feel the impact.

[2] While there are several legal initiatives which can be seen to be of a piece in this process, the one that most recently has been the subject of attention is the Military Order for the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism issued by President Bush on November 13, 2001 (the “Military Order”). The Military Order, issued in the context of the President’s authority as commander-in-chief, established the policy behind and the criteria for detention and subsequent trial of those determined to be members of al Qaeda or to have been involved in international terrorism against the United States. A substantial number of such persons were subsequently captured, principally in Afghanistan, and transported to the U.S. Naval Base at Guantanamo Bay, Cuba. On July 3, 2003, the eve of our national Independence Day celebrations, the President revealed that he had determined that six of the “enemy combatants” held at Gauntanamo pursuant to the Military Order were eligible for trials before military commissions.1

[3] The framework for judging the detainees was constructed by the Military Order and a series of subsequent substantive and procedural military orders. This framework gives the appearance of having considered traditional fairness issues but like the authorizations on which they are based, also breaks new legal ground. In a recently published article,2 The Economist compared procedures contemplated for the Guantanamo tribunals with those of tribunals dealing with purported terrorist activities in Northern Ireland; with special courts in South Africa under the regime of apartheid; with a U.S. court martial and with typical U.S. criminal courts. In six out of eight categories, including such fundamental areas as a defendant’s right to know the evidence against him and the right to lawyer/client confidentiality, the proposed U.S. tribunals fell short even of South Africa under the apartheid regime.3

[4] The proposed “legal” framework being constructed for the trial of the detainees is in some ways an extension of their treatment since detention began. Cells at Camp Delta,4 a principal detention facility at Guantanamo, measure less than seven by eight feet and all prisoners remain in their cells or in interrogation for all but 45 minutes per week. Congregation among prisoners is forbidden and communication with the outside world is virtually non-existent. Interrogation procedures are not independently monitored.5 In addition to isolation and confinement, conditions are reported as harsher than those in high security prisons in the United States. Treatment of detainees has variously been reported to include hooding, blindfolding, handcuffing and shackling, sleep deprivation, exposure to loud music and constant bright lights.6 Amnesty International has labeled the conditions of detention as amounting to “cruel, inhuman and degrading” treatment,7 prohibited under international law and by civilized nations.

[5] How has the U.S. attempted to justify the indefinite detention of these individuals under both morally and legally questionable conditions? The Bush administration has essentially taken two different tacks. The first is a geographic one. Guantanamo Bay is deemed to be a legal limbo geographically. It is not a sovereign territory of the U.S., but is a long-term leasehold. The U.S. thus exercises only “complete jurisdiction.”8 Under this view, the detainees are not entitled to the protection of the U.S. constitution because they are neither U.S. citizens nor on U.S. soil.9 But neither, apparently, are the detainees eligible for the protection of any other sovereign or of an international regime. Thus the U.S. has attempted to carve out a location that is for all practical purposes law-free. This in turn logically requires that the Department of Defense pursue, by issuing military orders and instructions, a whole new approach to the trials of the detainees, because in a zone that has been made “law-free” there is no other possible system to which one could appeal.10 Guantanamo (together with the undisclosed locations of detention, as well as those military bases and facilities in the U.S. itself where detainees who are U.S. citizens are being held incommunicado) comes to constitute, in legal terms, a piece of an American gulag, governed without meaningful reference to the rule of law as it is understood and applied outside that gulag.

[6] In addition to a geographic approach, the U.S. has also proceeded on the linguistic front. In fact, how the detainees are “named” has become the real keystone of the administration’s legal arguments. The administration’s argument has consistently been that the detainees are not prisoners of war but rather “unlawful combatants” or “unprivileged combatants” and hence fall outside of the purview of established protections that relate to POWs, to lawful combatants or to other protected classes of persons caught up in an armed conflict. These protections historically recognize that under customary international law “engaging in active hostilities is not a ‘crime’-it is an exercise of the combatant’s privilege, to kill before you are killed. . . The basis for human treatment of POWs is that they are not criminals but sons and daughters, parents and spouses, through whom states conduct war.”11 The combatant’s historical privilege does not permit him or her to commit criminal acts during the conduct of hostilities, and for such acts the combatant can and should be prosecuted. But prosecutions of these crimes, in the practice of civilized states, take place with due process and fairness and are based on evidence that is lawfully obtained.

[7] Under international law, the Geneva Conventions of 1949 control the treatment of persons who are either non-combatants or are no longer taking part in hostilities during armed combat or occupation. These Conventions outline a regime of protection for various classes of such persons depending on their status in relationship to the conflict or occupation. The United States is a party to these Conventions,12 and in consequence is bound by them. Prisoners of War are protected parties under the Conventions, and the Third Convention deals in some detail with issues related to who is entitled to POW status and what the implications of that status are. It is useful to look at the structural framework that holds the relevant provisions.

[8] According to the terms of its Article 2, the Third Convention applies in “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” It also applies to all cases of “partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. “As a general principle, Article 3 of the Third Convention13 requires humane treatment and provides for minimal rights for all persons taking no active part in hostilities, “including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause. . .” The minimum rights include a prohibition on the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.”

[9] Who is entitled specifically to the protected status of a Prisoner of War (“POW”) is determined by Article 4 of the Third Convention. Such persons belong to one or more of six listed categories. The four categories generally relevant to the detainees are the following:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and . . . volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory . . . [subject to certain additional requirements below].

3. Members of regular armed forces professing allegiance to a government or an authority not recognized by the Detaining Power.

4. (Category 6 of Article 4) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

[10] To benefit from inclusion in the second category above, Article 4 provides that individuals must belong to militias or other corps that are commanded by a person responsible for his subordinates, have a fixed distinctive sign, carry arms openly and conduct their operations in accordance with the laws and customs of war.

[11] It would seem difficult to argue that those detainees who formally fought for the Taliban fall outside of the POW provisions. It is admittedly somewhat easier to make that argument with respect to those detainees alleged to have been acting for Al Qaeda. But in either instance (as well as the instance of detainees who in fact may be found not to have actively fought for either the Taliban or Al Qaeda, but who were picked up in complete mistake of fact) the Convention provides further at Article 6 that “should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” In the instance of the Guantanamo detainees, no effort has been made to achieve such a determination.

[12] If persons fall within the category of POW, they become entitled to certain rights. Among these are the right to humane treatment (Article 13); to “respect for their persons and their honour” (Article 14); the right not to furnish information beyond name, rank, date of birth and serial number (Article 17); and to be free from physical or mental torture or any other form of coercion (Article 17). Conditions of internment are also specified. POWs may not, for example, be held in “close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary” (Article 21). They must be quartered in conditions “as favorable as those for the forces of the Detaining Power who are billeted in the same area” (Article 25). They should have access to canteens, to sanitary facilities, to appropriate hygiene, to medical personnel and chaplains, to “complete latitude in the exercise of their religious duties” (Article 34) and intellectual and physical exercise. They are entitled to be able to write directly to their families (Article 69), to send and receive letters and cards (Article 71), to receive supplies (Article 72), to elect prisoner representatives (Article 79), not to be sentenced for crimes or subjected to any penalties except those “provided for in respect of members of the armed forces of the Power who have committed the same acts” (Article 87). In terms of the protection of judicial proceedings, among other things, no “moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused” and “no prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel” (Article 99). Further, a POW can be validly sentenced “only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed. (Article 102).”

[13] The complex of rights accorded to POWs is more extensive than what has been summarized here. The basic philosophies of the Third Convention attempt to decriminalize acts of soldiers committed as soldiers and to afford protection to those serving in armed conflicts, while permitting the prosecution of acts that are considered to be criminal. It also looks to impose the obligations of treating “like as like,” that is, the standards to be applied to POWs are typically equivalent to the standards applied to a party’s own military. Given the principles and rights declared by the Third Convention, it is easy to see why the U.S. administration would be reluctant to admit that the detainees are POWs. If the detainees were accorded POW status, they would be entitled to repatriation under the terms of Article 118 upon the termination of hostilities. While ascertaining when hostilities have ended in a war that is open-ended almost by definition is more than challenging, the argument could certainly be made that hostilities in Afghanistan have terminated, given the fact that the country is under U.S. occupation, headed by a regime whose president is guarded by U.S. Special Forces.

[14] Detainees who are not protected as POWs under the Third Convention may also be entitled to protected status under the Fourth Convention,14 which deals with the protection of civilians during hostilities. Under the terms of the Fourth Convention, protected persons are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals (Article 4).” Some people are not considered protected persons, but neutrals who find themselves in occupied territory are. It is likely that some of the detainees who do not qualify for POW status may still qualify for protected person status. Protected status confers fairly extensive rights, and the number of these rights increases as detainees are removed to internment facilities. Humane treatment, due process, freedom from coercion, contact with relatives and diplomatic representatives, decent conditions of housing and medical care are all part and parcel of what ought to be expected by those who qualify under the Fourth Convention for protection.

[15] The protections afforded to combatants (as well as to civilians caught up in a conflict) whatever their status did not spring forth from the Conventions. The Conventions rather represent in most ways the codification of what had been customary in civilized nations. Attempting to avoid the Conventions’ technical reach does not remove a state from the customary usage and practice of civilized nations. It is arguable that the protections of the Protocols to the Conventions, which afford an additional set of rights, fall within this body of law and practice even though the United States is not a party to them. Under the provisions of Article 75 of Protocol I, the Guantanamo detainees would be “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under the Protocol.” Even if the detainees are considered somehow to fall outside of any of the classes protected under the Conventions and Protocols, they are still protected by the provisions of other treaties to which the U.S. is a party, including in particular the International Covenant on Civil and Political Rights (“ICCPR”).15

[16] The minimum standards guaranteed by the ICCPR at Article 14 include fair, public hearing before “a competent, independent and impartial tribunal established by law,” the “presumption of innocence,” “due process,” and the right to appeal to a “higher tribunal according to law.” It is clear at a minimum that the procedures established by the military regulations proposed for the tribunals do not come close to meeting this threshold of rights. Those subjected to hearings before the tribunals (or “commissions” as they have been formally designated) face what appears to be a judicial body, but which has no independent existence outside of the chain of executive command. In fact even rights of appeal are fully contained within that chain, and such rights to review even within the closed system that has been established are extremely limited on their face. They do not include, for example, any review with respect to the means employed to obtain evidence against a defendant. They do not permit review of evidentiary rulings, of procedure, of sentence or verdict. Evidence itself can be secret and withheld from defense counsel (whose conversations with clients are not necessarily privileged) and the entire proceeding can be kept closed to the public. In perhaps what is the most amazing departure from any established notions of justice, a verdict favorable to a defendant will not necessarily result in his release from internment. Thus, coupled with the numerous statements of members of the U.S. administration concerning the obvious guilt of the detainees, a page is borrowed from the Queen’s pronouncement with respect to the Knave: Sentence first, verdict afterwards. This is the classical antithesis to virtually all of the presumptions of Anglo-American jurisprudence.

[17] The issues raised by the detention at Guantanamo are numerous and multi-faceted. But from the standpoints of both ethics and the deeper significance of the law which in many ways both articulates and shapes our corporate understanding of ethics, they are of a piece. This coalescence of issues and the stances toward the law on the part of the U.S. administration-and by extension the American people-that they reflect is what brings us to a critical juncture for the direction of the rule of law. This juncture has implications for the U.S. as a state which has always voluntarily been subject to the rule of law, for the people of the United States and their identity and direction and for the global order itself.

[18] In the international order, legal predictability and accountability typically have been based on a foundation of voluntary participation ordered toward a common international good in which acts of nations have been limited by two ethical notions. One reason why, as a nation acting internationally, “we don’t,” is that we ought not. For a nation governed by laws and not persons this reason should be adequate to compel corporate behavior. We “ought not” either because we believe that certain acts are wrong and destructive, or because we have agreed that “we will not.” In either case we subject ourselves to a legal regime that may have no way of compelling our behavior, and others depend upon and learn from that voluntary submission. The United States has been both on the teaching and the learning sides of this equation at various times in her history. We ought to fear that we are on neither if our present course of conduct continues. A second reason why “we don’t” is that if “we did” someone else might also, and in the event that those actions and reactions occurred, the result would be disastrous for all nations and all peoples and the rule of law itself. If we continue our present course of conduct with respect to the detainees, and with respect to other related ways of acting in the face of the global threats we perceive, then we run a serious danger of moving to a position where “we ought” because “we can” and if “we can,” then “we must.” The development of this reasoning as it begins to apply across the world as power, privileges and alliances shift and break and reform, risks becoming the foundation of a disintegration of world order, both in concept and on the ground where those concepts matter desperately.

[19] For the United States as a nation-state there are implications as well. In part these relate to its place as one state among many in a world in which security hangs by a very thin thread, and law may dangle even more precariously. In part they relate to its perceived, and sometimes actualized, role as an ideological leader that subordinates its power and possibilities to its aspirations of justice and freedom. For the United States, being a power because of military or even economic prowess has never been fully satisfying. It has rather sought to occupy a moral high ground among states and to draw others into its ambit not merely as economic dependencies but as moral fellow travelers.16 One can argue as to whether such a motive was ever fully at work, but it is difficult to deny that it has existed in the nation’s self-perception and the conduct that has often resulted from that self-perception. And it is that moral position which is threatened by the administration’s legal retreat.

[20] The final implications of our course of conduct and line of argumentation go to our identity, not so much as a nation-state but as a people. Americans are a people who somewhat uniquely take our identity from law, not as a concept but as a shaping, formative, effective reality. We live, historically, in an interplay, in an imaginative interaction between what we expect of law and what it demands of us. We yield, individually and collectively, to decisions with which we disagree. We aspire more highly and embrace more expansively in the ethos of law than we would in its absence. We have been willing to rally around a constitutional center across partisan, economic and social grounds. What happens to a people who are so fearful that they are willing, with amazingly little debate, to permit the centering of their identity to give way? The erosion of identity which of necessity accompanies the erosion of a full commitment to the rule of law and to principles of justice and fairness in turn erodes the possibility of vision. With the failure of vision comes the failure of both character and conduct. The resulting damage is threefold. It first affects the rights of those we had all believed to be most protected, that is, those whose only protection was law and not societal favor. Second, the injury is to the rights of the whole, to the potential for nurturing a moral vision and choices that might eventually be made for the good of the other. Finally and most devastatingly, the damage is to the soul of the people, and to that soul’s capacity to envision and to effect the possibility of a national ethos based not on fear and the force that fear always requires to support it, but rather on hope. The hope is that we can be and will be as we have dreamed together-a society of law ordered toward mutuality, justice and the freedom of the human person because of its intrinsic, and therefore protected, dignity. It is this latter vision, dependent on a framework of fundamental fairness, which is most at risk; the loss of this vision for ourselves and for future generations is the highest cost. No matter what the danger posed by 650 men and boys who may both wish us and be capable of rendering us grave harm, even when joined to all the danger posed by their confederates and ideologies, it can in no measure be as deeply rending and destructive as the risk of our own denigration of the principles of law which have served us and formed us and continue to hold before us what we can become.

End Notes

1 There are generally thought to be approximately 650 detainees at Guantanamo. They are from at least 40 countries. An unknown number of other “enemy combatants” are being held at various undisclosed locations around the world, with the presumption that any trials and/or executions of these latter detainees would eventually also take place at Guantanamo, assuming the absence of the equivalent to what has become known in Israeli practice as “extrajudicial execution.”

2 “A Necessary Evil,” in The Economist, July 12, 2003

3 The graphic presentation of the conclusions was aptly titled “Perry Mason, this ain’t.”

4 Other facilities for detention also exist at Guantanamo, including a facility in which children who have been captured are being held.

5 See “Detention at Guantanamo Bay: A Linguistic Challenge to Law,” in Human Rights (Winter, 2003).

6 See$File/AMR5111403.pdf.

7 Ibid.

8 The U.S. lease covering the Guantanamo base dates to 1903 and was revised by treaty in 1934. The agreements purport to give the U.S. power to “exercise complete jurisdiction and control” over Guantanamo Bay, while Cuba retains “ultimate sovereignty.” In recent years the government of Cuba has repeatedly protested the U.S. presence as illegitimate. The U.S., of course, has not taken kindly to suggestions by Cuba that the Naval Station might be subject to the jurisdiction of anyone other than the U.S. and excludes any incursions of either a legal or physical nature by the “host” country.

9 The issue has been litigated in several venues. See for example Coalition of Clergy v. Bush, brought in federal district court in Los Angeles in which the court relied on the ruling in Johnson v. Eisentrager (339 U.S. 763), a World War-II era case finally decided in 1950, dealing with assistance rendered by German nationals to the Japanese. See also Rasul, et al. v. Bush, et al, and Odah, et al. v. U.S.A. et al, US Court of Appeals for the District of Columbia Circuit, argued December 2, 2002, decided March 11, 2003, No. 02-5251.

10 The base is not law-free with respect to U.S. military personnel, where the established rules and procedures of the military justice system prevail, a system with procedural rights considerably more favorable to a defendant than what has been proposed for the detainees.

11 Michael J. D. Sweeney, “Detention at Guantanamo Bay,” in Human Rights Magazine, Winter 2003, reprinted at

12 The U.S. is not a party to the Protocols thereto. While the U.S. did not accord recognition to the Taliban, the state of Afghanistan was (and continues to be) a party to the Conventions.

13 This is a common article to each of the 1949 Conventions.

14 The Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949, entry into force 21 October 1950.

15 The ICCPR entered into force for the United States on September 8, 1992, and the U.S. has not formally notified any derogation from its terms.

16 I borrow a phrase from what was for so long deemed to be a competing source of authority.