By David K. Shipler
Of all
the self-inflicted wounds by the United States since 9/11, the flawed military
commissions set up to try suspected foreign terrorists rank high on the list. At
Guantanamo, the commissions have been bogged down in a swamp of dubious ethical,
legal, and procedural practices. Their constitutionality has been challenged,
their partial secrecy denounced.
Some of their military judges have
demonstrated bias, and one was reprimanded this week by the powerful Court of
Appeals for the D.C. Circuit, which vacated all his orders back to Nov. 19,
2015, the date he initiated a conflict of interest by applying to the Justice
Department to be an immigration judge. All rulings on his orders by the Court
of Military Commission Review were also set aside, wiping the slate almost
clean of pretrial decisions in the case, now requiring re-argument on many of
the issues. It was a telling illustration of the mess that’s been created.
Without the military commissions,
it’s a good bet that the most prominent prisoners at Guantanamo would have been
executed years ago, or at least be sitting on death row waiting for the needle.
They would have been tried in civilian federal courts, which Republicans have
blocked, although the courts are the jewel in the crown of the American
judicial system. If juries had found them guilty, it’s hard to imagine anything
but the death penalty. Instead, the alleged organizers of the 9/11 attacks and
the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more
than 15 years, at taxpayers’ expense, waiting for trial by military commissions
that are so ill-conceived as to be vulnerable to obstruction by prosecutors and
multiple motions by defense attorneys seeking to guard their clients’ rights.
