In the latest setback to the Guantanamo military commissions, the US Court of Appeals for the D.C. Circuit on Tuesday threw out some three years of pre-trial rulings by the military judge presiding over the case of the alleged mastermind of the USS Cole bombing.
The decision was based on an inexcusable procedural problem: The military judge was pursuing a job in the executive branch while sitting on a case involving charges brought by the executive branch. The appeals court opinion featured a stinging attack on “all elements of the military commission system” for failing “to live up to” the “shared responsibility” of ensuring criminal justice.
The ruling highlights an important evolution in the challenges facing the military commissions, which were set up to bring to justice the U.S. detainees at the prison at Guantanamo Bay, Cuba.
Since the authorization of the current commissions in 2009, the central challenge has been to produce a legitimate set of outcomes despite the fact that the defendants have been detained outside the civilian justice system and in some cases even tortured. In essence, the goal has been to avoid the claim that the commissions are a form of show trial. That challenge persists, and the D.C. Circuit’s ruling shows that the commission system isn’t meeting that challenge to the satisfaction of the civilian appeals court .
Now, however, a new challenge is equally prominent. The commissions are just too slow. The bureaucratic process of grinding out trials in a new and demanding system feels like it is stalled, even if in reality it is continuing to inch along. That slowness threatens the very possibility of closing this chapter in U.S. history. Like in civilian death-penalty cases, the delay creates the feeling of an impossible contradiction: The delay may be the result of efforts to protect the defendant, yet the slowness also seems like a mechanism of unjustified punishment.
The D.C. Circuit case arose from the commission trial of Abd Al-Rahim Al-Nashiri, who is accused of planning the bombing of the Cole, U.S. guided missile destroyer, off Yemen in 2000. Al-Nashiri, a Saudi citizen, was captured by the CIA in 2002, held in various black sites around the world, and waterboarded. (The CIA says it destroyed the tapes of the waterboarding.)
He was originally charged before military commission at Guantanamo in 2008, then recharged in 2011 after the U.S. Supreme Court invalidated the old procedures and Congress passed a law creating the procedures that are now in place.
Al-Nashiri hasn’t faced a verdict yet, so the case before the D.C. Circuit wasn’t about overturning his conviction. It focused instead on the series of rulings issued by military judge Colonel Vince Spath in Al-Nashiri’s case after the summer of 2015, when Spath applied for a job as an immigration judge in the Department of Justice.
Immigration judges aren’t subject to presidential appointment and Senate confirmation under Article III of the Constitution, which governs the judicial branch. You can’t apply for an Article III judgeship, whether at the district court level or the Supreme Court, at least not officially.
Immigration judges are often called “Article I judges,” whose positions are created by Congress and whose appointment is located within the executive branch. That’s why it was a conflict of interest for Spath to preside over Al-Nashiri’s trial, in which the executive branch is charging a defendant with a crime and the judge is supposed to be impartial.
Government lawyers tried to excuse the conflict by saying that Al-Nashiri is being prosecuted by a military commission that belongs to the Department of Defense while Spath was seeking employment under the Department of Justice. If this sounds implausible, recall that as a military judge Spath also works for the Department of Defense. Lawyers in the military justice system are accustomed to thinking it’s possible for judges to be impartial even though they work for the same executive department as the prosecution.
But as the D.C. Circuit noted, due process under the Constitution protects not only against bias but also against the appearance of partiality. In a situation like the Guantanamo cases, where legitimacy is precisely the problem, it should have been clear to the judge and the prosecution that Spath couldn’t apply for a job at the Justice Department while sitting on the case. The upshot is that it has been 17 years since Al-Nashiri’s capture and his case is now set back for years to come.
As law professor Steve Vladeck noted on Lawfare, since the military commissions began to operate, they’ve “produced a grand total of eight convictions. Six of those eight convictions were obtained via plea bargain. Only one conviction has survived a post-conviction appeal to the D.C. Circuit.” Vladeck argues that the commissions have now officially failed.
The commissions won’t shut down, because there’s no other straightforward way to try people, like the major Sept. 11 plotters, who’ve been detained and tortured outside the civilian criminal justice system.
But the delay is now starting to look like a continuation of the indefinite detention at Guantanamo that the commissions were supposed to address.
True, the delay is in large part because everyone is trying to get the procedure right. At some point, however, that reality recedes and the bureaucratic grind enhances the perception (and maybe reality) of a Kafkaesque, permanent judicial process without an end in sight.
In some sense, this contradictory situation isn’t the “fault,” of the government, in the same way the slowness of the judicial process leading to the death penalty isn’t the prosecution’s “fault.” Yet ultimately, for purposes of making criminal justice legitimate and effective, it doesn’t matter who is at fault when it comes to very long delays. The Guantanamo process has long been challenged by creating fairness. Now it’s also challenged by delivering justice in the form of actual results.
Noah Feldman is a professor of law at Harvard University.