In what was perhaps the most critical passage, however, he pointed out that using Commissions instead of federal court trials appeared to demonstrate only that the government was afraid that some federal court trials would fail, and was therefore seeking a forum that eliminated the possibility of acquittals. “If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point,” he said. “You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.”
He added, “The corollary to that is that you can’t have a real court if the evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government’s case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution.”
These were extremely significant comments, as anyone who has studied the history of the “War on Terror” Commissions knows only too well. Military defense attorneys, assigned to represent prisoners in the Commissions, realized early on that the system was designed solely to secure convictions, and this realization was the basis for their unanimous opposition to the Commissions’ very existence. As Lt. Cmdr. Charles Swift, who represented Salim Hamdan, one of Osama bin Laden’s drivers, explained in 2007, “The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively — what some people call torture. Guantánamo and the military commissions are implements for breaking the law.”
In addition, in October 2007, when Col. Morris Davis, the Commissions’ chief prosecutor, resigned, he stated, in subsequent statements, that he had done so not only because of the politicization of the process (which I wrote about in an article last October, “The Dark Heart of the Guantánamo Trials”) and the administration’s insistence on using information derived from the use of torture (despite his implacable opposition), but also because, in a discussion in August 2005 with Jeh Johnson’s predecessor, William J. Haynes II (one of the most significant figures in the development of the Bush administration’s torture policies), the following exchange had taken place (as he explained to the Nation):
“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.
“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”
The rest of Admiral Hutson’s testimony was devoted to expanding on his explanation of why federal courts are the only viable forum for “terror trials,” and involved him not only dismissing as “a red herring” the notion that soldiers would have to give Miranda warnings to those captured on the battlefield, but also pointing out that if the government revised the Commissions to a sufficiently high standard, “then we have essentially duplicated our own Federal courts”:
Over the years, federal courts have displayed remarkable ingenuity, flexibility, and resourcefulness in prosecuting terrorists. The Federal Rules of Evidence and Procedure are sufficiently adaptable to accommodate the vagaries of trying those individuals who are captured overseas by military personnel in the midst of performing military operations. I believe the image of the “strategic colonel” having to give Miranda warnings after risking his life to break into the bunker is a red herring.
If you as members of this Committee believe or suspect that the Federal Rule of Evidence or the Federal Rules of Criminal Procedure should be amended to accommodate certain cases and situations, it is preferable to superimpose modest new rules on an extant, tried and true judicial system than to create a whole new system — particularly in light of recent efforts.
[I]f we create yet another military commission system that “contains all the judicial guarantees considered to be indispensable by all civilized peoples” as required by Common Article 3 of the Geneva Conventions, then we have essentially duplicated our own Federal courts. There is no logical reason to create a system that mirrors one already in existence and is functioning so well. We should strive for the minimum change necessary to accomplish the purpose, not a wholesale change to an already effectively functioning system.
Clearly and undeniably, the Administration and this Committee are dedicated to untying this Gordian knot in a way that serves the very best interest of the country. We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal it rather than improve it. In the process, I urge you to express this body’s preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.
My hope, of course, is that senior officials in the Obama administration and the members of the Senate Armed Services Committee not only digest Admiral Hutson’s words of wisdom, but also shape their still amorphous policies based on his advice. The alternative — a legal quagmire that lacks legitimacy and maintains key policies of the Bush administration’s “War on Terror,” including trials designed to prevent acquittals, and claims that prisoners can continue to be held even if acquitted after a trial — is, genuinely, almost too awful to contemplate.
