Guantanamo Pushback

How principled men and women in the military justice system resisted encroachments on civil liberties

The Terror Courts: Rough Justice at Guantanamo Bay, by Jess Bravin, Yale University Press, 414 pages, $30

I was considerably more pessimistic about the War on Terror's impact on American liberty before I read Jess Bravin's The Terror Courts: Rough Justice at Guantanamo Bay.

It's not that the author is an optimist—far from it. Bravin, a Supreme Court reporter for The Wall Street Journal, describes with dismay how the George W. Bush administration attempted to create a shadow justice system for dealing with foreigners and Americans whom the executive branch considers perpetrators and facilitators of terrorism. Wielding no partisan ax, Bravin laments President Barack Obama's failure to renounce many of the same executive powers.

But Bravin also describes an intriguing civil war within the national security establishment. As Bush's most hardened hawks rounded up suspected terrorists, others within the government fought, both overtly and covertly, to protect constitutional procedures.

It is no secret that sectors of civil society—civil liberties groups, the organized bar, much of the news media—battled Bush and his henchmen (and now Obama and his henchmen) over abuses of civil liberties by military tribunals. Bravin shows that such critics had allies within the government. To the extent that liberty and due process have survived, they endure largely thanks to government employees and military officials who rebelled against, and in subtle ways worked to undermine, what they saw as threats to the nation's fundamental institutions.

Military commissions, established by the U.S. Military Commissions Act of 2006, were designed to try terrorism suspects based on evidence and procedures that would never hold up in either a court martial or a federal court. For instance, the president's men frequently attempted (often successfully) to use the fruits of coercive interrogation techniques—torture, in the eyes of many within the military justice system—as evidence in tribunals.

Yet the commissions never become kangaroo courts. You can give part of the credit for that to unexpectedly assertive federal courts, which pruned back the administration's expansion of executive power, and part to an occasionally assertive Congress. But Bravin shows, in fascinating and often dramatic detail, how members of the security agencies themselves pushed back against the changes, thwarting the White House's desires. Officers on the ground turned out to have minds and principles of their own, and those principles frequently conformed more precisely to constitutional values than did the principles of their superiors.

Marine Lt. Col. Stuart Couch, an ROTC lawyer, repeatedly refused to prosecute terrorism suspects whom he concluded had been tortured by CIA agents. Navy Lt. Commander Charles Swift, the lawyer appointed by the Pentagon to wrest a guilty plea from captive Salim Hamdan, ignored his marching orders and instead advised his client to fight rather than make a deal. The ultimate result of Swift's efforts was the Supreme Court's 2006 ruling in Hamdan v. Rumsfeld, which imposed legal constraints on military commission trials.

Thanks to Swift and the Supreme Court, Hamdan, who had been Osama bin Laden's chauffeur, received a fair trial. The government charged him with terrorist conspiracy and providing material support to terrorists, essentially attempting to hold Hamdan responsible for his employer's actions. Because there was little evidence that Hamdan did much of anything other than drive his boss around, the prosecution tried to fill in the gaps by calling an expert witness, Evan Kohlmann. 

For the munificent sum of $25,000, Kohlmann lectured the military jury on the horrors of the Al Qaeda terror network. Both civilian and military prosecutors frequently call on Kohlmann, whose credentials are scant, to frighten jurors with his vivid narratives. (Kohlmann once brought his dog-and-pony show to a trial in federal district court in which I served on the defense team.)

The military jury proved itself immune to these scare tactics and to the government's overwrought theories of culpability, acquitting Hamdan on the conspiracy count. It convicted him on the charge of material assistance, but instead of the life sentence prosecutors were hoping for, it gave him five months and eight days in prison, after crediting him for the time he served awaiting trial (but not the nearly two years he spent awaiting charges after his capture in November 2001). Last October, after the cutoff date of Bravin's narrative, the U.S. Court of Appeals for the District of Columbia Circuit overturned even that conviction, holding that material support for terrorism was not recognized as a crime under the Military Commission Act of 2006 when Hamdan worked for bin Laden from 1996 to 2001.

Bravin gives a bit too much credit to the Supreme Court for standing up to the Bush administration's assault on the writ of habeas corpus. While the Court dutifully held that Guantanamo prisoners were entitled to challenge their incarceration via the writ, its prescription for the content of habeas hearings was watered down. This resulted from the Justices' lack of familiarity with the realities of litigation. For example, the Justices blithely allowed an expanded role for hearsay testimony, making it surprisingly easy to obtain a wrongful conviction in some cases. But allowing for habeus hearings still gave many captives and their attorneys some chance of questioning fabricated evidence.

But this is a minor quibble in the face of a remarkable job by one of the news media's most persistent reporters on matters of law and national security. Bravin penetrated a system designed for railroading prisoners in nearly complete secrecy, and he demonstrated the persistence of many ordinary—and some extraordinary —Americans in doggedly defending such quaint notions as the presumption of innocence and the rule of law.