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By K. Jack Riley, Jerrold D. Green, Richard B. Goetz, and Michelle Kezirian
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No matter what Congress decides to do with President Obama's latest attempt to close Guantánamo Bay prison, there should be agreement that the existing legal process is fundamentally flawed and the best way to fix it is to replace the military judges now assigned to the Guantánamo trials with federal judges—whether the trials proceed at Guantánamo or in the United States.
This shift to federal judges would expedite the process of resolving the Guantánamo cases in ways that would reflect better on the credibility and legitimacy of the U.S. justice system, while serving the interests of Congress, the president, survivors and victims' families.
That is the conclusion reached recently by the Pacific Council on International Policy's GTMO Task Force, of which we are members. The task force consists of 17 attorneys and policy specialists, the majority of whom have traveled to Guantánamo as official civilian observers.
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We observed the proceedings at different times, but we shared persistent concerns that the legal conundrum the United States has constructed at Guantánamo will haunt it into the future.
We left Guantánamo with the impression that many decent, dedicated and professional military personnel have been deployed to serve in a court system that is itself nearly beyond rehabilitation. Shifting to federal judges offers the best and most politically feasible hope for rectifying the damage that's been done at Guantánamo since the military tribunals, known as the Guantánamo commissions, opened 14 years ago in the anxious aftermath of the 9/11 attacks.
Why would it make a difference to replace the military judges with federal judges? Two reasons.
First, almost everyone agrees that the Guantánamo commissions are broken. Their inefficiency, expense and ambiguity over something as basic as a trial date have undermined their legitimacy and America's credibility on the world stage.
Regardless of one's political views, it is hard to deny that the on-again, off-again pursuit of justice, for at best a week or two every other month, serves nobody's interests, neither in deciding guilt, nor in doling out punishment, nor in affirming the integrity of the U.S. legal system.
Second, U.S. district judges—assigned full-time to Guantánamo—would apply standard case-management techniques that could go a long way toward clearing the logistical and procedural hurdles that have stymied the military judges since 2002.
Many federal judges are versed in the protocols for reviewing classified evidence and have already presided over high-profile terrorism trials in their own courts. Experienced federal judges would be better positioned than military judges to evaluate the millions of pieces of classified information that have mired the Guantánamo cases in years-long discovery disputes.
Because they are civilians, the federal judges would also deflect perceptions of improper "command influence," and their lifetime appointments would shield them from political interference.
Federal judges could adjudicate the Guantánamo trials either at Guantánamo (if Congress rejects Obama's plan) or on U.S. soil (if Congress accepts his plan).
There is historical precedent for appointing federal judges to preside over courts for special purposes abroad. President Eisenhower created one such court in Germany after World War II—the United States Court for Berlin.
This precedent also shows that the federal judiciary is empowered to apply an external body of law—then it was German law; now it would be U.S. military law—in a jurisdiction outside the judge's own. For the Guantánamo trials, federal judges would simply be empowered to apply military commission law.
To make this happen would require an amendment to the Military Commissions Act of 2009, which says that "a military judge shall be detailed to each military commission." The amendment would say that "a U.S. district judge shall be detailed to each military commission."
Such an amendment would require congressional approval but would not require the closure of Guantánamo. If anything, the amendment would put in place the jurists who could best advance the will of Congress to prosecute suspects in a timely fashion.
It would also require approval from the U.S. Supreme Court chief justice or his designee, but any U.S. Supreme Court justice would presumably have faith in the resolve of U.S. federal judges to bring the Guantánamo cases to just conclusions.
To further equip federal judges to advance the interests of justice at Guantánamo, the Pacific Council task force proposes four additional steps:
- Allow the federal judges at Guantánamo to use modern technology. There is no reason every pretrial motion involving a Guantánamo detainee should have to be heard in person, as is now the case. Stateside lawyers, witnesses and interpreters should be able to participate in routine pretrial matters and attorney-client communications via secure video conference. A secure transoceanic connection, consisting of an underwater fiber-optic cable from Florida to Guantánamo, is scheduled to become active any day now.
- Make commonsense use of timelines. The Guantánamo commissions should require each federal judge to set the earliest possible dates for trials to begin. This requirement is not imposed on military judges.
- Allow the survivors of attacks and the families of deceased victims to testify even before trials begin, capturing a record of the human losses for the court to consider if and when sentencing occurs. Knowing that their testimony will endure for posterity can lend comfort to the survivors and families who now wonder if justice will ever be served.
- Practice a policy of openness. The Guantánamo proceedings should be made available for broadcast or Internet streaming to promote public engagement, demystify a process mired in misunderstanding and articulate for the world how the military commissions advance American values and interests.
As recent atrocities involving the Islamic State militant group (ISIS) suggest, the 9/11 attacks are unlikely to be the last time the U.S. government will feel compelled to take extraordinary legal action under emergency conditions.
It is one thing to be a nation of laws in peacetime. It is quite another to uphold laws in times of peril. It is at those latter times when America defines its true brand of justice. Putting federal judges in charge of the Guantánamo commissions would help Americans regain pride in the U.S. justice system.
K. Jack Riley is vice president and director of the National Security Research Division at the nonprofit, nonpartisan RAND Corporation. Jerrold D. Green is president and CEO of the Pacific Council on International Policy. And Richard B. Goetz, a partner at O'Melveny & Myers LLP, and Michelle Kezirian, a director of litigation and policy advocacy at a public-interest law firm, are co-chairs of the Pacific Council on International Policy's GTMO Task Force.
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