Will the sun ever set for good over Gitmo?

Photographer: Brennan Linsley-Pool/Getty Images

Obama Makes Guantanamo Tribunals More Difficult

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Buried in the middle of President Barack Obama’s speech Tuesday on closing the military prison at Guantanamo Bay, Cuba, was a remarkable statement very close to a repudiation of the military commissions trying Khalid Sheikh Mohammed and nine other terrorists.

Obama first said that the “costly” commissions hadn’t resulted in a conviction related to the Sept. 11 attacks. He noted that the commissions had been reformed under his administration -- neatly implying that he hadn’t initiated them -- and said he was proposing more changes, which Congress would have to approve. And he went on to praise the civilian criminal courts, known as the Article III courts for the section of the Constitution that established them, for convictions in other terrorist attacks, including the Boston Marathon bombing.

Then the president essentially threw the existing military commissions under the bus. He said that they represented a chapter that should be closed. The commissions shouldn’t be a precedent for how terrorists should be tried, he said, but should be reserved for battlefield detentions, as they had been in previous wars.

There’s something extraordinary about the president so baldly criticizing prosecutions that are taking place under the auspices of the executive branch that he himself directs. The prosecuting party in the Guantanamo trials is the U.S. government, speaking through the executive branch. If Obama isn’t happy with how those prosecutions are going, he has the power to order the government’s side to act differently. Instead, with an eye toward history, he’s distancing himself from a process that he to a great extent controls.

As a matter of law and principle, Obama is right. The tribunals, he noted, are taking place because of what he euphemistically called the “unique circumstances” of the arrest and detention of several of the Sept. 11 defendants. This was a polite way of saying some were tortured. We now know that the waterboarding of Mohammed and another detainee greatly exceeded even the standards laid out by the Office of Legal Counsel. In practice, it would be difficult to try these detainees in a civilian court now.

What’s more, it’s not at all clear that it would be constitutional to move the cases under way in the military commissions. In civilian court, we say that jeopardy attaches when the jury is seated.

Although it’s very probable the U.S. couldn’t retry these defendants in a civilian court, Obama is also right that the Article III courts have been perfectly adequate in convicting terrorists and would-be attackers since 2001.

But perhaps most important, Obama is deeply correct to say that military commissions have to be reserved for battlefield detentions and trials. In the extraordinarily important post-Civil War case known as Ex parte Milligan, the U.S. Supreme Court held that a civilian alleged to have aided the Confederacy couldn’t be tried by military commission in Indiana when the U.S. courts were open and operating. Applied in its spirit, the Milligan precedent means that military tribunals should be reserved for soldiers detained on the battlefield and tried immediately and nearby. That isn’t the case for the terrorists connected to the Sept. 11 attacks.

Obama knows that the judgment of history is going to be harsh when it comes to the Guantanamo military commissions. It will be difficult to avoid seeing them as instances of victors’ justice. The procedural complexity and the sense that the tribunals are making up the rules ad hoc undercut the value of the rule of law.

Yet for all this legal and moral correctness, Obama has also made the Guantanamo prosecutors’ situation substantially more difficult with his public statement. The military prosecutors, led by General Mark Martins, are honorable people trying to perform an extraordinarily difficult and thankless task to the best of their abilities and in the service of the public.

And their commander-in-chief has just hung them out to dry. How, exactly, are prosecutors supposed to insist on the fairness of the trials they’re prosecuting when the president has suggested that they should never be repeated? Seen from the prosecutors’ standpoint, Obama’s oblique reference to Ex parte Milligan is particularly devastating. It implies the basic irregularity of the military commissions.

The president didn’t say he wouldn’t prosecute anyone else in the commissions, and his proposal keeps open the theoretical possibility. But the strong implication of his statement was that new prosecutions won’t be forthcoming.

As Obama said Tuesday, the chapter of the commissions must be closed. But in his legal goodwill, he just made that closure more difficult.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net