The United States is now prosecuting some of the most important terrorism cases in its history in military commissions at Guantanamo Bay. More than a decade after their creation by the Bush administration, however, the commissions remain a legal experiment gone awry. The Obama administration's decision to reform the commissions - rather than retire them - seems increasingly misguided.
A federal appeals court has now rejected two key charges used by commission prosecutors - conspiracy and material support for terrorism - because they are not recognised as war crimes under international law. The chief prosecutor, Brigadier General Mark Martins, subsequently sought to withdraw conspiracy charges from pending cases, but the Convening Authority, which determines whether specific charges should be referred to trial by military commission, denied the request. The Obama administration, meanwhile, is seeking to overturn the appeals court's rulings, with Attorney General Eric Holder rejecting the recommendation from the Solicitor General not to proceed with a further appeal. As Martins recognises, proceeding with war crimes charges not sanctioned by international law undermines the commissions' legitimacy.
Recent events continue to reveal serious improprieties in the conduct of the trials. Last week, attorneys for Khalid Sheik Mohammed and the other 9/11 defendants sought to halt proceedings after learning that 500,000 internal defence emails had been seized and defence files had disappeared from computer servers. In their handwritten motion to the commission judge, defence attorneys stressed that the compromise of data undermines the right to the effective representation of counsel guaranteed by the Sixth Amendment to the Constitution and the Military Commissions Act.
The loss of defence files and seizure of internal defence emails are merely the latest examples of the commissions' enduring flaws. The sudden interruption earlier this year of the public feed from the military courtroom at Guantanamo exposed that a government agency - presumably the CIA - has the ability to secretly censor the feed of proceedings that the public and news media receive on a 40-second delay. The military judge, Army Col James L Pohl, claimed he had no knowledge of the external kill-switch and asserted that he alone has authority to limit public access.
Inside Story Americas- Where are the
Guantanamo legal files?
Eavesdropping equipment disguised as smoke detectors has been discovered in the rooms where attorneys meet with their clients. The government denies that it has listened to attorney-client communications, which are privileged by law. But a recent Seton Hall Law School report calls into question the government's account. The report details how the listening devices are so sensitive they can detect even whispers between attorneys and clients, while the cameras are so powerful that they can read attorneys' hand-written notes and other confidential documents. The government has failed to explain why it would need such hypersensitive monitoring equipment if not to eavesdrop on confidential attorney-client communications.
In contrast to military commissions, federal courts have a distinguished history and track record of trying terrorism suspects without sacrificing due process or compromising ethical standards. Had the trials been conducted in federal court, there would never have been a seizure of confidential defence communications, discovery of secret eavesdropping equipment, or any of the other irregularities that have become par for the course at Guantanamo. Indeed, had a federal judge learned that an unnamed government agency was capable of secretly censoring proceedings in the courtroom, it would have prompted an official investigation.
These revelations do more than confirm that military commissions remain a second-class justice system, despite efforts of the Obama administration to improve them. They underscore that the commissions have never internalised principle of legality nor accepted that defendants must be zealously represented by their attorneys to ensure the integrity of the process. Instead, the commissions remain susceptible to manipulation by the national security apparatus, which views them as an extension of the "war on terrorism" and an opportunity to gather intelligence rather than to provide fair and impartial trials.
The world is watching, and it is not only the defendants, but also the US that will be judged. Even if some breaches of the attorney-client privilege were inadvertent, they demonstrate a shocking lack of professionalism and respect for the integrity of the judicial process. It is imperative that the US brings those responsible for 9/11 and other terrorist attacks to justice. But it is equally important that it do so in accordance with the rule of law.
Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America's New Global Detention System.
Follow him on Twitter: @JonathanHafetz
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.