I think others could do a more thorough job engaging Davis's substantive defense of the commissions, but one point made on our site recently by Jonathan Hafetz is, I think, crucial to keep in mind as we get tangled in arguments about the commissions process and what might possibly be done to improve them: Namely, most detainees are never going to face a military commission at all. As Hafetz wrote,
The president created military commissions two months after September 11 as part of his "new paradigm." The administration claimed that the commissions provided the necessary speed and flexibility to bring suspected terrorists to justice. These were attributes, the administration argued, that criminal trials in civilian courts lacked. The expectation was that most detainees taken to Guantanamo would be quickly charged and convicted.Those rulings hinged on a fundamental discrepancy between the standards for the Combatant Status Review Tribunals (CSRT) that determine who can be detained and those for the military commissions (the former has a looser definition for "enemy combatant" than the latter). That paradox pertains to all of the hundreds of Gitmo detainees, and it's obvious that for most of them, no military commission of any kind (no matter how flawed) will take place; they will simply be detained indefinitely, or until a new administration completely revamps the U.S.'s policies.But within months, the administration realized that it did not have the evidence to charge, let alone convict, most Guantanamo detainees of anything. As Lt. Col. Thomas S. Berg, a member of the original military prosecution team, told the press, "It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield. We literally found guys who had been shot in the butt."
So, the administration changed gears, turning Guantanamo into a permanent system of indefinite detention. In more than five years, only ten of the seven hundred individuals detained at Guantanamo have even been charged before military commissions, and no trial has taken place ...
Since the MCA's passage in October, only three detainees have been put before military commissions. The first, David Hicks, pled guilty in March, in a nakedly political deal widely denounced as a travesty. Hicks -- once described as a dangerous terrorist -- was returned to Australia, where he will serve an additional nine months before being freed. Trials for the other two detainees, Omar Khadr and Salim Hamdan, were halted by last week's rulings.
The open-ended and undefined nature of the "war on terror" also has significant practical implications for Guantanamo. It means that the administration has no incentive to try people, since its evidence -- in many cases weak or non-existent -- would be exposed to greater scrutiny. Instead, it can simply hold people forever by branding them "enemy combatants" through a sham CSRT process that relies on secret evidence, denies detainees lawyers, and relies on information gained through torture.A focus on the admittedly abominable military commissions is thus, in many ways, a red herring.
--Sam Rosenfeld
